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Full text of "Legislative history of the Federal Mine Safety and Health Act of 1977"

~* f 






95th Congress 1 
2d Session J 



COMMITTEE PRINT 



LEGISLATIVE HISTORY 

OF THE 

FEDERAL MINE SAFETY AND 
HEALTH ACT OF 1977 



PREPARED FOR THE 

SUBCOMMITTEE ON LABOR 

OF THE 

COMMITTEE ON HUMAN RESOURCES 
UNITED STATES SENATE 




JULY 1978 



Printed for the use of the 
Committee on Human Resources 



95 «? Congress \ COMMITTEE PRINT 

2d Session 



LEGISLATIVE HISTORY 

OF THE 

FEDERAL MINE SAFETY AND 
HEALTH ACT OF 1977 



PREPARED FOR THE 

SUBCOMMITTEE ON LABOR 

OF THE 

COMMITTEE ON HUMAN RESOURCES 
UNITED STATES SENATE 




JULY 1978 



Printed for the use of the 
Committee on Human Resources 



U.S. GOVERNMENT PRINTING OFFICE 
20-040 WASHINGTON : 1978 



COMMITTEE ON HUMAN RESOURCES 

HARRISON A. WILLIAMS, Jr., New Jersey, Chairman 
JENNINGS RANDOLPH, West Virginia JACOB K. JAVITS. New York 

CLAIBORNE PELL, Rhode Island RICHARD S. SCHWEIKER, Pennsylvania 

EDWARD M. KENNEDY, Massachusetts ROBERT T. STAFFORD, Vermont 

GAYLORD NELSON, Wisconsin ORRIN G. HATCH, Utah 

THOMAS F. EAGLETON, Missouri JOHN H. CHAFEE, Rhode Island 

ALAN CRANSTON, California S. I. HAYAKAWA, California 

WILLIAM D. HATHAWAY, Maine 
DONALD W. RIEGLE, Jr., Michigan 

Stephen J. Paradise, General Counsel and Staff Director 

Marjorik M. Writ-taker, Chief Clerk 

Don A. Zimmerman, Minority Counsel 

Gregory Fcsco, Minority Staff Director 



Subcommittee on Labor 

HARRISON A. WILLIAMS, Jr., New Jersey, Chairman 
JENNINGS RANDOLPH, West Virginia JACOB K. JAVITS, New York 

CLAIBORNE PELL, Rhode Island RICHARD S. SCHWEIKER, Pennsylvania 

GAYLORD NELSON. Wisconsin ROBERT T. STAFFORD, Vermont 

DONALD W. RIEGLE, Jr., Michigan 

Darryl J. Anderson, Counsel 
Don A. Zimmerman, Minority Counsel 

(") 



FOREWORD 



The Committee on Human Resources, and its predecessor Committee 
on Labor and Public Welfare have for many years recognized that 
mining is among the most hazardous of occupations. The Federal Mine 
Safety and Health Amendments Act of 1977, Public Law 95-164, 
which created the Federal Mine Safety and Health Act of 1977 marks 
the fruition of more than a decade of eifort on the part of this com- 
mittee and the Congress to improve the workplace safety and health 
of our Nation's miners. 

Public Law 95-164 includes the best features of the previous mine 
safety and health laws, the Federal Metal and Non-metallic Mine 
Safety Act and the Federal Coal Mine Health and Safety Act. The 
new law establishes a single mine safety and health program which is 
designed to reflect the essential differences between the various seg- 
ments of the mining industry and the differing mining operations. But, 
the underlying consideration is that despite differences in mining tech- 
niques and hazards involved, our miners are entitled to a unified Fed- 
eral commitment to their health and safety. This can only occur if 
enforcement procedures are uniform. 

Public Law 95-164 provides a simplified and unified procedure for 
the development and promulgation of safety and health standards, a 
unified system of civil penalties and withdrawal orders to encourage 
compliance by mine operators, new requirements for miner safety and 
health training, and increased emphasis on the development and en- 
forcement of health standards. The act transfers the responsibility for 
enforcement and administration of the national mine safety and health 
program from the Department of the Interior to the Department of 
Labor, since the Department which is generally responsible for the 
welfare of the working men and women should also be responsible for 
the protection of miners. 

The Committee on Human Resources is convinced that there is broad 
agreement among miners, mine operators, and the Federal Government 
that better mine safetv and health will improve mine production and 
serve the best interests of our Nation. There will, however, be many 
questions concerning the intent of the Congress and the appropriate 
interpretation and implementation of this law bv the Secretary of 
Labor. This legislative history has been prepared in order to assist 
those charged with the administration and interpretation of the law. 
It is also intended to assist the Congress in its oversight responsibility, 
as well as our Nation's miners and mine operators who will benefit from 
the Act's provisions. 

Harrison A. Williams, Jr., 

Chairman. 

(HI) 



CONTENTS 



Page 

Foreword in 

January 19, 1977 — House : 

H.R. 2060. text of, as introduced 2 

February 11, 1977 — Senate : 

Introductory remarks of Mr. Williams on S. 717 82 

Section-by-Section Analysis « 90 

S. 717. text of. as introduced 110 

March 2. 1977 — House : 

H.R. 42S7, text of, as introduced 188 

May 13. 1977— House : 

H.R. 4287. text of, as reported 266 

House Report 95-312 357 

May 16. 1977— Senate: 

S. 717, text of. as reported 433 

Senate Report 95-181 589 

May 26. 1977— Senate : 

Submission of amendments to S. 717, Federal Mine Safety and Health 

Act 790 

Amendments to S. 717 : 

No. 347 (by Mr. Schmitt) 1 791 

Xo. 348 (by Mr. Schmitt) 792 

No. 349 (by Mr. Schmitt) 794 

Xo. 350 (bv Mr. Schmitt) 797 

No. 351 (by Mr. Schmitt) 799 

Xo. 352 (by Mr. Schmitt) 800 

June 7, 1977 — Senate : 

Amendment to S. 717 : 

Xo. 369 (by Mr. Helms) 805 

Introductory remarks by Mr. Helms 802 

June 9, 1977 — Senate: 

Amendments to S. 717 : 

Xo. 383 (by Mr. Helms) 812 

Introductory remarks by Mr. Helms 809 

Xo. 384 (by Mr. Helms) 813 

Introductory remarks by Mr. Helms 809 

No. 3S5 (by Mr. Thurmond) 814 

June 10. 1977 — Senate: 

Additional cosponsors on Amendment Xo. 369 to S. 717 815 

Amendment to S. 717 : 

Xo. 391 (by Mr. Helms) 817 

Introductory remarks by Mr. Helms 815 

June 13, 1977— Senate: 

Amendments to S. 717 : 

No. 395 (by Mr. Thurmond) 819 

No. 401 (by Mr. McClure) 820 

Xo. 402 (by Mr. McClure) 821 

No. 403 (by Mr. McClure) 822 

No. 404 (by Mr. McClure) 823 

June 14. 1977 — Senate : 
Amendment to S. 717: 

No. 407 (by Mr. Thurmond) 825 

June 15, 1977 — Senate : 

Additional cosponsors on Amendment No. 369 to S. 717 826 

(v) 



VI 

June 17, 1977 — Senate: 

Amendments to S. 717: Pa * e 

No. 427 (by Mr. Schmitt) 827 

No. 487 (by Mr. Hatch) 828 

June 20, 1977— Senate: 

Amendment No. 441 to S. 717 (by Mr. Garn) 902 

Additional cosponsors on Amendment No. 369 to S. 717 903 

Floor debate on S. 717 903 

Report of the Comptroller General of the United States on S. 717 913 

Analysis by the Department of the Interior on S. 717 916 

Response by Director, Office of Management and Budget 919 

Letter to the President, from Senator Williams and Senator Javits 919 

Letters of concern from various companies regarding S. 717 926 

Committee Industry Cost Estimate 946 

Memorandum from the Administrator of MESA to the Assistant Secre- 
tary of Energy for Minerals, Department of the Interior, with en- 
closures 968 

Comments by W. L. Carter, president, National Crushed Stone Asso- 
ciation, with attached comments in editorials 977 

Summary Report of the Comptroller General of the United States 980 

Letter from D. K. Walker. Chief of the Health and Safety Analysis 

Center of MESA 989 

June 21, 1977— Senate: 

Floor debate on S. 717 999 

Letters of concern on S. 717 from New Mexicans 1097 

S. 717. text of. as passed by Senate 1109 

June LM. 1977 — House : 

Concurrence of House requested on S. 717 1133 

July 13. 1977— House: 

Report on Resolution providing for consideration of H.R. 4287 1133 

H. Res. 682, text of. as reported 1134 

House Report 95-499 1137 

July 14. 1977— House: 

Consideration of II. Res. 6S2 1138 

Consideration of II. R. 4287 1143 

July 15, 1977 — House: 

Floor debate on H.R. 4287 1158 

Amendment in the nature of a substitute offered by Mr. Sarasin on 

H.R. 42S7 1183 

Consideration of S. 717 1253 

S. 717, text of, as passed by the House 1260 

July 18, 1977— Senate: 

House requests conference 1277 

Senate agrees to conference 1278 

October 3, 1977— Senate : 

Submission of conference report, Senate Report 95-461 1278 

October 3, 1977— House: 

House Report 95-655 to S. 717, conference report 1347 

October 6, 1977— Senate : 

Conference Report agreed to by Senate 1347 

October 17, 1977— Senate: 

Submission of a concurrent resolution, S. Con. Res. 57 1349 

S. Con. Res. 57, text of 1351 

October 27, 1977— House : 

Conference report agreed to by House 1354 

November 11, 1977 — Daily Digest: 

Public Law 95-164, text of, November 9, 1977 1373 



[From the Congressional Record — House, Jan. 19, 1977] 

(Pp. 474-476) 
******* 

Public Bills and Resolutions 

Under clause 5 of rule X and clause 4 of rule XXII, public bills and 
resolutions were introduced and severally referred as follows : 



By Mr. GAYDOS : 
H.R. 2060. A bill to amend the Federal Metal and Nonmetallic Mine Safety Act 
and to transfer certain functions relating to coal mine health and safety under 
the Federal Coal Mine Health and Safety Act of 1900; to the Committee on 
Education and Labor. 



[The text of H.R. 2060 follows :] 

(i) 



95th CONGRESS WJ W% C\f\S+f\ 



IN THE HOUSE OF REPRESENTATIVES 

January 19, 1977 

Mr. Gaydos introduced tlic following bill; which \\;i> referred to the Com- 
mittee on Education and Labor 



A BILL 

To amend the Federal Metal and Nonmetallic Mine Safety Act 
and to transfer certain functions relating to coal mine health 
and safety under _the Federal Coal Mine Health and Safety 
Act of 1969. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 That this Act may be cited as the "Mine Safety and Health 

4 Act of 1977". 

p Sec. 2. The Federal Metal and Nonmetallic Mine Safety 

6 Act is amended to read as follows : 

7 "SHOKT TITLE 

8 "Section 1. This Act may be cited as the 'Federal 

9 Metal and Nonmetallic Mine Safety and Health Act\ 



2 
"congressional findings and purposes 

„ "Sec. 2. (a) Congress finds and declares that — 

" ( 1 ) the first priority and concern of all in the 

4 metal and nonmetallic mining industry must be the health 

and safety of its most precious resource — the miner; 

6 "(2) deaths and serious injuries from unsafe and 

„ unhealthful conditions and practices in metal and non- 

o metallic mines cause grief and suffering to the miners 

9 and to their families; 

-,q " (3) there is an urgent need to provide more effec- 
H tive means and measures for improving the working 
12 conditions and practices in the Nation's metal and non- 
13 metallic mines in order to prevent death and serious 

14 physical harm, and in order to prevent occupational dis- 

15 eases originating in such mines ; 

2 g " (4) the existence of unsafe and unhealthful con- 

17 ditions and practices in the Nation's metal and non- 

1£ metallic mines is a serious impediment to the future 

19 growth of the mining industry and cannot be tolerated; 

20 " (5) the operators of such mines, with the assist- 
2i ance of the miners, have the primary responsibility to 

22 prevent the existence of such conditions and practices in 

23 such mines ; and 

94 "(6) the disruption of production and the loss of 

25 income to operators and miners as a result of metal and 



3 

1 nonmetallic mine accidents or occupationally caused 

2 disease unduly impedes and burdens commerce. 

3 " (b) The Congress therefore declares it to be its purpose 

4 and policy — 

5 li ( 1 ) to encourage employers and employees in their 

6 efforts to reduce the number of occupational safety and 

7 health hazards in metal and nonmetallic mines and to 

8 stimulate employers and employees to institute new and 

9 to perfect existing programs for providing safe and 

10 healthful working conditions ; 

11 " (2) to provide that employers and employees have 

12 separate but dependent responsibilities and rights with 

13 respect to achieving safe and healthful working condi- 

1 4 tions; 

15 "(3) to authorize the Secretary of Labor to set 

16 mandatory safety and health standards applicable to 
1^ metal and nonmetallic mines affecting interstate com- 

18 merce ; 

19 " (4) to authorize the Secretary of Health, Educa- 

20 tion, and Welfare and the Secretary of the Interior to 

21 conduct research in the field of metal and nonmetallic 

22 mme safety and health, and to develop innovative meth- 

23 ods, techniques, and approaches for dealing with metal 

24 and nonmetallic mine safety and health problems; 

2o "(5) to explore ways to discover latent diseases, 



4 

1 establishing causal connections between diseases and 

2 work in environmental conditions, and conducting other 

3 research relating to health problems, in recognition of 

4 the fact that mine health standards present problems 

5 often different from those involved in mine safety; 

6 "(6) to provide medical criteria which will assure 

7 insofar as practicable that no metal or nonmetallic mine 

8 employee will suffer diminished health, functional ca- 

9 pacity, or life expectancy as a result of his work 

10 experience ; 

11 "(7) to provide an effective enforcement program 

12 which shall include a prohibition against giving advance 

13 notice of any inspection and protection from discrimina- 

14 tion against any miner instituting or testifying in any 

15 proceeding involving an alleged violation of this Act; 

16 and 

17 "(8) by providing for appropriate reporting pro- 

18 cedures with respect to metal and nonmetallic mine 

19 safety and health, which procedures will help achieve 

20 the objectives of this Act and accurately describe the 

21 nature of the metal and nonmetallic mine safety and 

22 health problem. 

23 "definitions and coveeage 

24 "Sec. 3. (a) For the purposes of this Act: 

25 "(1) The term 'commerce' means trade, traffic, 



8 



5 

1 commerce, transportation, or communication among the 

2 several States, or between a State and any place outside 

3 thereof, or within the District of Columbia, the Common- 

4 wealth of Puerto Rico, or a possession of the United 

5 ' States (other than the Trust Territory of the Pacific 

6 Islands), or between points in the same State but 

7 through a point outside thereof. 

8 "(2) The term 'mine* means (1) an area of land 

9 from which minerals (other than coal or lignite) are 

10 extracted in nonliquid form or, if in liquid form, are 

11 extracted with workers underground, (2) private wa}'s 

12 and roads appurtenant to such area, and (3) land, 

13 excavations, underground passageways, and workings, 

14 structures, facilities, equipment, machines, tools, or other 

15 property, on the surface or underground, used in the 

16 work of extracting such minerals (other than coal or 

17 lignite) from their natural deposits in nonliquid form, 

18 or if in liquid form, with workers underground, or used 

19 in the milling of such minerals, except that with respect 

20 to protection against radiation hazards such term shall 

21 not include property used in the milling of source ma- 

22 terial as defined in the Atomic Energy Act of 1954, as 

23 amended. 

24 "(3) The term 'operator' means any person, part- 

25 nership, association, or corporation, or subsidiary of a 



6 

1 corporation operating a mine, and owning the right to 

2 do so, and includes any agent thereof charged with 

3 responsibility for the operation of such mine. 

4 " (4) The term 'Secretary' means the Secretary of 

5 Labor. 

6 "(5) The term 'Commission* means the Federal 

7 Metal and Nonmetallic Mine Safety and Health Com- 

8 mission established under section 18. 

9 " (6) The term 'State' includes a State of the United 

10 States, the District of Columbia, the Commonwealth of 

11 Puerto Rico, the Virgin Islands, American Samoa, 

12 Guam, and the Trust Territory of the Pacific Islands. 

13 " (7) The term 'miner' means any individual work- 

14 ing in a mine. 

15 "(8) The term 'injury' means (A) any harmful 

16 change in the human organism which can be determined 

17 to be work-related, whether or not the result of an ac- 

18 cident, and includes any occupational disease, and (B) 

19 any damage to or loss of prosthetic and orthotic devices. 

20 " (9) The term 'imminent danger' means danger 

21 which could reasonably be expected to cause death or 

22 serious injury immediately or before the imminence of 

23 such danger can be eliminated through the enforcement 

24 procedures otherwise provided by this Act, and includes 



8 

7 

1 such danger resulting from exposure of miners to toxic 

2 materials or harmful physical agents. 

3 "(b) Each mine the products of which regularly enter 

4 commerce, or the operations of which affect commerce, shall 

5 be subject to this Act. 

6 " (c) Nothing in this Act sball be construed to supersede 

7 or in any manner affect any workmen's compensation law 

8 or to enlarge or diminish or affect in any other manner the 

9 common law or statutory rights, duties, or liabilities of opera- 

10 tors and miners under any law with respect to injuries, 

11 diseases, or death of miners arising out of, or in the course of, 

12 employment. 

13 "duties 

14 "Sec. 4. (a) Each operator of a mine — 

15 " ( 1 ) shall furnish to each of his miners employ- 

16 ment and a place of employment which are free from 

17 recognized hazards that are causing or are likely to cause 

1 8 death or serious injury to his miners ; 

19 " (2) shall comply with health and safety standards 

20 promulgated under this Act. 

21 "(b) Each miner shall comply with health and safety 

22 standards promulgated under this Act and all rules, regula- 

23 tions, and orders issued pursuant to this Act which are ap- 

24 plicable to his own actions and conduct. 



9 

8 

1 

2 "Sec. 5. (a) (1) The health and safety standards pro- 

3 mulgated and designated as mandatory by the Secretary of 

4 the Interior under section 6 (as such section existed immedi- 

5 ately prior to the effective date of section 2 of the Mine Safety 

6 and Health Act of 1977) shall be deemed, as of the effective 

7 date of section 2 of the Mine Safety Health Act of 1977, 

8 to be health and safety standards promulgated under this 

9 section. 

10 "(2) The Secretary shall establish an advisory com- 

11 mittee under subsection (d) which shall within six months 

12 alter the date of the establishment of such advisory com- 

13 mittee, review the health and safety standards promulgated 

14 by the Secretary of the Interior (but not designated as 

15 mandatory) under section 6 (as such section existed imme- 

16 diately prior to the effective date of section 2 of the Mine 

17 Safety and Health Act of 1977) of this Act, and recom- 

18 mend to the Secretary which of those standards (or any 

19 modification of such standards which does not substan- 

20 tially diminish the health and safety of miners) should be 

21 promulgated as health and safety standards under this 

22 section. 

23 The Secretary shall publish each of the standards rec- 

24 ommended for adoption with or without modification by 

25 that advisory committee as a health and safety standard 



10 



1 under this section in the Federal Register and afford interested 

2 persons a period of forty-five days after publication to submit 

3 written data or comments. Within thirty days after the close 

4 of the comment period specified in the preceding Pontenee, th* 

5 Secretary shall promulgate by publication in the Federal 

6 Kegister a standard based upon the standard recommended 

7 with or without modification by the advisory committee and 

8 the data and comments received thereon, unless the Scere- 

9 tary determines that such a standard will not promote the 

10 health and safety of miners and publishes an explanation 

11 of that determination in the Federal Kegister. 

12 "(3) Within six months after the effective date of sec- 

13 tion 2 of the Mine Safety and Health Act of H>77, the 

14 Secretary shall determine which of the occupational safety 

15 and health standards promulgated under section 6 of the 

16 Occupational Safety and Health Act of 1970 pertain to 

17 miners employed in the milling of minerals in mines subject 

18 to this Act. The Secretary shall publish in the Federal 

19 Register each such standard so determined, unless the Sec- 

20 re tary determines that such standard does not promote the 
2i health and safety of miners employed in the milling of 

22 minerals in mines subject to this Act. The Secretary shall 

23 afford interested persons a period of forty-five days after 

24 publication to submit written data or comments. Unless the 

25 Secretary determines, on the basis of such data and com- 



11 



10 

1 merits, that a standard does not promote the health and 

2 safety of such miners, the Secretary shall promulgate by 

3 publication in the Federal Register, within thirty days after 

4 the close of the comment period specified in the preceding 

5 sentence, a standard based upon the standard published 

6 under the second sentence of this paragraph and the data 

7 and comments received thereon, together with an explana- 

8 tion of the reasons such standard is pertinent to such miners. 

9 Any health and safety standard deemed under the preceding 

10 sentence to be a health and safety standard promulgated 

11 under this section shall supersede any corresponding stand- 

12 ard in effect under paragraph (1) or (2) of this subsection 

13 with respect to miners employed in the milling of minerals 

14 in mines subject to this Act, if such standard under the 

15 preceding sentence provides substantially as effective pro- 

16 tection to miners as the standard it would supersede. 

17 " (4) Within one year after the effective date of sec- 

18 tion 2 of the Mine Safety and Health Act of 1977, the Secre- 

19 tary shall review all occupational safety and health standards 

20 promulgated under section 6 of the Occupational Safety 

21 and Health Act of 1970 and shall commence proceedings for 

22 promulgation of those standards which are appropriate for 

23 miners in accordance with subsection (b) . 

24 " (b) The Secretary shall by rule promulgate any 

25 health or safety standard under this section, and modify, 



20-040 O - 78 - 2 



12 



11 

1 or revoke any health and safety standard promulgated under 

2 this section, in the following manner, but any such modifica- 

3 tion or revocation of any such health and safety standard shall 

4 be accompanied by an explanation, to be published in the 

5 Federal Register, of how that modification or revocation pro- 

6 vides substantially as effective protection to the health or 

7 safety of miners : 

8 " ( 1 ) Whenever the Secretary, upon the basis of in- 

9 formation submitted to him in writing by an interested 

10 person, a representative of any organization of operators or 

11 miners, a nationally recognized standards-producing orga- 

12 nization, the Secretary of Health, Education, and Welfare, 

13 the National Institute for Occupational Safety and Health, 

14 the Director of the Bureau of Mines, or a State or political 

15 subdivision, or on the basis of information developed by the 

16 Secretary or otherwise available to him, determines that 

17 a rule should be promulgated in order to serve the objectives 

18 of this Act, the Secretary may request the recommendations 

19 of an advisory committee appointed under subsection (d). 

20 Whenever the Secretary receives in writing from any person 

21 a proposal for the promulgation, modification, or revocation 

22 of any health and safety standard under this section, die 

23 Secretary shall review such proposal, and respond, within 

24 sixty days after receipt of such proposal, as to whether or 

25 not proceedings with respect to such proposal will be initiated 



13 



12 

1 under this subsection. The Secretary shall provide such an 

2 advisory committee with any proposals of his own or of the 

3 Secretary of Health, Education, and Welfare, together with 

4 all pertinent factual information developed by the Secretary 
* or the Secretary of Health, Education, and Welfare, or oth- 

6 erwise available, including the results of research, demonstra- 

7 tions, and experiments. An advisory committee shall submit 

8 to the Secretary its recommendations regarding the rule to 

9 be promulgated within ninety days from the date of its 

10 appointment or within such longer or shorter period as may 

11 be prescribed by the Secretary, but in no event for a period 

12 which is longer than two hundred and seventy days. 

13 "(2) The Secretary shall publish a proposed rule pro- 

14 mulgating, modifying, or revoking health and safety stand- 

15 ards in the Federal Register and shall afford interested per- 

16 sons a period of sixty days after publication to submit written 

17 data or comments. Where an advisory committee is ap- 

18 pointed and the Secretary determines that a rule should be 

19 issued, he shall publish the proposed rule within sixty days 

20 after the submission of the advisory committee's recommen- 

21 dations or the expiration of the period* prescribed by the 

22 Secretary for such submission. 

23 •' (3) On or before the last day of the period provided for 

24 the submission of written data or comments under paragraph 

25 (2) , any interested person may file with the Secretary writ- 



14 



13 

1 ten objections to the proposed rule, stating the grounds 

2 therefor and requesting a public hearing on such objections. 

3 Within thirty days after the last day for filing such objec- 

4 tions, the Secretary shall publish in the Federal Register a 

5 notice specifying the health and safety standard to which 

6 objections have been filed and a hearing requested, and 

7 specifying a time and place for such hearing. 

8 "(4) Within sixty days after the expiration of the pe- 

9 riod provided for the submission of written data or comment? 

10 under paragraph (2), or within sixty days after the com- 

11 pletion of any hearing held under paragraph (o) , the 

12 Secretary shall issue a rule promulgating, modifying, or re- 

13 voking a health and safety standard or make a determination 

14 that a rule should not be issued which shall be publish'; a in 

15 the Federal Register, together with an explanation of ihe 

16 reasons for such determination. Such a rule may contain 

17 a provision delaying its effective date for such period (not 

18 in excess of ninety days) as the Secretary determines may 

19 be necessary to insure that affected operators and miners 

20 w iH be informed of the existence of the standard and of its 

21 terms and that operators affected are given an opportunity 

22 to familiarize themselves and their miners with the existence 

23 of the requirements of the standard. 

24 "(5) (A) The Secretary, in promulgating standards 

25 dealing with toxic materials or harmful physical agents 



15 

14 

1 under this subsection, shall set the standard which most 

2 adequately assures, to the extent feasible, on the basis 

3 of the best available evidence, that no miner will suffer 

4 material impairment of health or functional capacity even 

5 if such employee has regular exposure to the hazard dealt 

6 with by such standard for the period of his working life. 

7 Development of standards under this subsection shall be 

8 based upon research, demonstrations, experiments, and such 

9 other information as may be appropriate. In addition to the 

10 attainment of the highest degree of health and safety protec- 

11 tion for the miner, other considerations shall be the number 

12 of miners exposed to the hazard, the latest available scientific 

13 data in the field, the feasibility of the standard, experience 
1* gained under this Act, the Occupational Safety and Health 

15 Act of 1970, the Federal Coal Mine Health and Safety Act 

16 of 1969, and the Atomic Energy Act of 1954, and experi- 
1? ence gained by appropriate Federal agencies with expertise 

18 relating to conditions and practices in mines subject to this 

19 Act. Whenever practicable, the standard promulgated shall 

20 be expressed in terms of objective criteria and of the per- 

21 formance desired. 

22 "(B) Any standard dealing with toxic materials or 

23 harmful physical agents promulgated under this section shall 

24 provide for miners or their representatives the opportunity 

25 to observe monitoring and measuring of miner exposures 



16 



15 

1 to toxic materials or harmful physical agents required to be 

2 monitored or measured under such standard and the opportu- 

3 nity for access to the records thereof required to be main- 

4 tained under section 8 (b) (3) . Such standard shall provide 

5 that each miner or former miner shall have access to such 

6 records of medical examinations and other tests as will indi- 

7 cate his own exposure to such toxic materials or harmful 

8 physical agents, and each operator shall promptly notify any 

9 miner who has been or is being exposed to such toxic mate- 

10 rials or harmful physical agents in concentrations or at levels 

11 which exceed those prescribed by the standard, and shall 

12 inform any miner who is thus being exposed of the correc- 

13 tive action being taken. Where appropriate, the standard 

14 shall provide that where a determination is made that a miner 

15 may suffer a material impairment of health or functional 

16 capacity by reason of exposure to the hazard covered by the 

17 standard, that miner shall be removed from such exposure 

18 and reassigned. In such event, the standard shall also pro- 

19 vide that there shall be no loss of earnings, seniority, or 

20 status to the miner as a result of such removal and 

21 reassignment. 

22 " (6) Any standard promulgated under this section shall 

23 prescribe the use of labels or other appropriate forms of 

24 warning as are necessary to insure that miners are ap- 

25 prised of all hazards to which they are exposed, relevant 



17 



16 

1 symptoms and appropriate emergency treatment, and proper 

2 conditions and precautions of safe use or exposure. Such 

3 standard shall also prescribe suitable protective equipment 

4 and control and technological procedures to be used in con- 

5 nection with such hazards and shall provide for monitoring 

6 and measuring miner exposure at such locations and inter- 

7 vals, in such manner as may be necessary for the protection 

8 of miners. In addition, where appropriate, any such standard 

9 shall prescribe the type and frequency of medical examina- 

10 tions and other tests which shall be made available by the 

11 operator or at his cost, to miners exposed to such hazards in 

12 order to most effectively determine whether the health of 

13 such miners is adversely affected by such exposure. In the 

14 event such medical examinations are in the nature of research, 

15 as determined by the Secretary of Health, Education, and 

16 Welfare, such examinations may be furnished at the expense 

17 of the Secretary of Health, Education, and Welfare. The 

18 results of such examinations and tests shall be furnished only 

19 to the Secretary, the Secretary of Health, Education, and 

20 Welfare, the operator or his authorized agent (except in the 

21 case of examinations furnished by the Secretary of Health, 

22 Education, and Welfare), and, at the request of the miner, 

23 to himself, his authorized representative, or his physician. 

24 The Secretary, in consultation with the Secretary of Health, 

25 Education, and Welfare, may by rule promulgated pursuant 



18 

' 17 

1 to section 553 of title 5, United States Code, make appropri- 

2 ate modifications in the foregoing requirements relating to the 

3 use of labels or other tonus of warning, monitoring or meas- 

4 uring, and medical examinations, as may he irranted by 

5 experience, information, or medical or technological develop- 

6 ments acquired subsequent to the promulgation of the rele- 

7 vant standard. 

8 " (7) As soon as possible after the date of enact- 

9 ment of the Mine Safety and Health Act of 1977, hut in no 

10 event later than three years after such date, the Secretary of 

11 Health, Education, and Welfare shall, for each toxic material 

12 or harmful physical agent which is on the list required under 

13 section 23(h) and which is not covered by a health and 

14 safety standard promulgated under this section, determine 

15 under such section 23 (h) whether such material or agent is 

16 potentially toxic at the concentrations in which it is used 

17 or found in a mine, and shall immediately submit such deter- 

18 ruination to the Secretary, together with all pertinent cri- 

19 teria. Within ninety days after receiving any determination 

20 together with criteria in accordance with the preceding sen- 

21 tence, the Secretary shall either appoint an advisory com- 

22 mittee to make recommendations with respect to a health 

23 and safety standard covering such material or agent in ac- 

24 cordance with paragraph (1) or publish a proposed rule 



19 



18 

1 promulgating such a health and safety standard in accord- 

2 ance with paragraph (2) . 

3 "(8) In determining the priority for establishing 

4 standards under this section, the Secretary shall give due 

5 regard to the urgency of the need for mandatory health and 

6 safety standards, including the recommendations of the Sec- 

7 retary of Health, Education, and Welfare regarding such 

8 need. 

9 "(c) (1) The Secretary shall provide, without regard 
10 to the requirements of chapter 5, title 5, United States Code, 
IX for an emergency temporary standard to take immediate 

12 effect upon publication in the Federal Kegister if he deter- 

13 mines (A) that miners are exposed to grave danger from 

14 exposure to substances or agents determined to be toxic or 

15 to cause injury or from other hazards, and (B) that such 

16 emergency standard is necessary to protect miners from such 

17 hazard. 

18 "(2) Such standard shall be effective until superseded 

19 by a standard promulgated in accordance with the proce- 

20 dures prescribed in paragraph (3). 

21 " (3) Upon publication of such standard in the Federal 

22 Register the Secretary shall commence a proceeding in 

23 accordance with subsection (b) of this section, and the stand- 

24 ard as published shall also serve as a proposed rule for the 

25 proceeding. The Secretary shall promulgate a standard under 



20 



19 

1 this paragraph no later than nine months after publication 

2 of the emergency standard as provided in paragraph (2). 

3 "(d) The Secretary may establish an advisory coni- 

4 mittee to assist him in his standard-setting functions under 

5 this section. Each such committee shall consist of not more 

6 than fifteen members, including as members designees of 

7 the Secretary of Health, Education, and Welfare and of 

8 the Secretary of the Interior, and including among its mem- 

9 bers an equal number of persons qualified by experience and 

10 affiliation to present the viewpoint of the employers in- 

11 volved, and of persons similarly qualified to present the 

12 viewpoint of the workers involved, as well as one or more 

13 representatives of mine health and safety agencies of the 

14 States. Any such advisory committee may also include such 

15 other persons as the Secretary may appoint who are qualified 

16 by knowledge and experience to make a useful contribu- 
1? tion to the work of such committee, including one or more 

18 representatives of professional organizations of technicians 

19 or professionals specializing in mine safety or health, and 

20 one or more representatives of nationally recognized stand- 

21 ards-producing organizations, but the number of persons 

22 so appointed to any such advisory committee shall not exceed 

23 the number appointed to such committee as representatives 

24 of Federal and State agencies. Persons appointed to advisory 

25 committees from private life shall be compensated in the 



21 



20 

1 same manner as consultants or experts under section 3109 

2 of title 5, United States Code. The Secretary shall pay to 

3 any State which is the employer of a member of such a 

4 committee who is a representative of the mine health or safety 

5 agency of that State, reimbursement sufficient to cover the 

6 actual cost to the State resulting from such representative's 

7 membership on such committee. Any meeting of such com- 

8 mittee shall be open to the public and an accurate record 

9 shall be kept and made available to the public. No member 

10 of such committee (other than representatives of employ- 

11 ers and employees) shall have an economic interest in any 

12 proposed rule. 

13 "(e) Any person who may be adversely affected by a 

14 standard issued under this section may at any time prior to 

15 the sixtieth day after such standard is promulgated file a 

16 petition challenging the validity of such standard with the 

17 United States court of appeals for the circuit wherein such 

18 person resides or has his principal place of business, for a 

19 judicial review of such standard. A copy of the petition shall 

20 be forthwith transmitted by the clerk of the court to the Sec- 

21 retary. The filing of such petition shall not, unless otherwise 

22 ordered by the court, operate as a stay of the standard. The 

23 determinations of the Secretary shall be conclusive if sup- 

24 ported by substantial evidence in the record considered as a 

25 whole. 



22 

21 

1 "variances 

2 "Sec. 6. (a) Any affected operator may apply to the 

3 Secretary for a rule or order for a variance from a standard 

4 promulgated under section 5. Affected miners shall he given 

5 notice of each such application and an opportunity to par- 

6 ticipate in a hearing. The Secretary shall issue such rule 

7 or order if he determines on the record, after opportunity for 

8 an inspection where appropriate and a hearing, that the 

9 proponent of the variance has demonstrated by a pre- 

10 ponderance of the evidence that the conditions, practices, 

11 means, methods, operations, or processes used or proposed to 

12 be used by an operator will provide employment and places 

13 of employment to his miners which are as safe and healthful 

14 as those which would prevail if he complied with the sb.nd- 

15 ard. The rule or order so issued shall preserve the conditions 

16 the operator must maintain, and the practices, means, meth- 

17 ods, operations, and processes which he must adopt and 

18 utilize to the extent they differ from the standard in question. 

19 Such a rule or order may be modified or revoked upon ip- 

20 plication by an affected operator or miner, or by the Secre- 

21 tary on his own motion, in the manner prescribed for its 

22 issuance under this subsection at any time after six months 

23 from its issuance. 

24 "(b) The Secretary may grant a variance from any 

25 standard or portion thereof whenever he determines, or 



23 



22 

1 the Secretary of Health, Education, and Welfare or the 

2 Secretary of the Interior certifies, that such variance is 

3 necessary to permit an operator to participate in an experi- 

4 ment approved by him or by the Secretary of Health, 

5 Education, and Welfare or the Secretary of the Interior de- 

6 signed to demonstrate or validate new and improved tech- 

7 niques to safeguard the health or safety of miners, if the 

8 Secretary determines that adequate protection is afforded 

9 to the health and safety of miners. 

10 "(c) (1) Any operator may apply to the Secretary 

11 for a temporary order granting a variance from a standard 

12 or any provision thereof promulgated under section 5. Such 

13 temporary order shall be granted only if the operator files 

14 an application which meets the requirements of paragraph 

15 (2) and establishes that (A) he is unable to comply 

16 with a standard by its effective date because of unavailability 
17. of professional or technical personnel or of materials and 

18 equipment needed to come into compliance with the standard 

19 or because necessary construction or alteration of facilities 

20 cannot be completed by the effective date, (B) he is taking 

21 all available steps to safeguard his miners against the 

22 hazards covered by the standard, and (C) he has an 

23 effective program for coming into compliance with the 

24 standard as quickly as practicable. Any temporary order 

25 issued under this subsection shall prescribe the practices, 



24 

23 

1 means, methods, operations, and processes which the oper- 

2 a tor must adopt and use while the order is in effect and 

3 state in detail his program for coming into compliance with 

4 the standard. Such a temporary order may he granted only 

5 after notice to miners and an opportunity for a hearing: 

6 Provided, That the Secretary may issue one interim order 

7 to he effective until a decision is made on the hasis of 

8 the hearing. No temporary order may be in effect for 

9 longer than the period needed by the operator to achieve 

10 compliance with the standard or one year, whichever is 

11 shorter, except that such an order may be renewed not more 

12 than twice so long as the requirements of this subsection 

13 are met and if an application for renewal is filed at least 

14 ninety days prior to the expiration date of the order. No 

15 interim renewal of an order may remain in effect for longer 

16 than one hundred and eighty days. 

17 "(2) An application for a temporary order under this 

18 subsection shall contain— 

19 " (A) a specification of the standard or portion 

20 thereof from which the operator seeks a variance; 

21 " (B) a representation by the operator, supported 

22 by representations from qualified persons having first- 

23 hand knowledge of the facts represented, that he is 

24 unable to comply with the standard or portion thereof 

25 and a detailed statement of the reasons therefor; 



25 



24 

1 .<" (C) a statement of the steps he has taken and will 

2 take (with specific dates) to protect miners against the 

3 hazard covered by the standard ; 

4 . " (D) a statement of when he expects to be able to 

5 comply with the standard and what steps he has taken 

6 and what steps he will take (with dates specified) to 

7 come into compliance with the standard; and 

8 .■;.■" (E) a certification that he has informed his miners 

9 of the application by giving a copy thereof to their au- 

10 thorized representative, posting a statement giving a 

11 summary of the application and specifying where a 

12 copy may be examined at the place or places where 

13 notices to miners are normally posted, and by other ap- 

14 propriate means. 

15 A description of how miners have been informed shall be 

16 contained in the certification. The information to employees 

17 shall also inform them of their right to petition the Secretary 

18 for a hearing. 

19 "(d) The Secretary, on the record, after notice and 

20 opportunity for a hearing may provide such reasonable limi- 

21 tations and may make such rules and regulations allowing 

22 reasonable variations, tolerances, and exemptions to and from 

23 any or all provisions of this Act as he may find necessary 

24 and proper to avoid serious impairment of the national de- 

25 fense, Such action shall not .be in effect for more than six 



26 



25 

1 months without notification to affected miners and an oppor- 

2 tunity being afforded for a hearing. 

3 "(e) Whenever the Secretary grants any variance, 

4 variation, tolerance, or exception under this section, he shall 

5 include a statement of the reasons for such action, which shall 

6 be published in the Federal Register. 

7 "inspections 

8 "Sec. 7. (a) In order to carry out the purposes of this 

9 Act, the Secretary, or the Secretary of Health, Education, 

10 and Welfare, or an authorized representative of either, upon 

11 presenting appropriate credentials to the owner, operator, or 

12 agent in charge, is authorized — 

13 " ( 1 ) to enter without delay, and at reasonable 

14 times, any mine subject to this Act, and 

15 "(2) to inspect and investigate, during regular 

16 working hours and at other reasonable times, within 

17 reasonable limits, and in a reasonable manner, any such 

18 and all pertinent conditions, structures, machines, appa- 

19 ratus, devices, equipment, and materials therein, and to 

20 consult privately with any such employer, owner, oper- 

21 ator, agent, or miner. In carrying out the requirements 

22 of this section in each mine, the Secretary shall make 

23 inspections of each entire underground mine at least four 

24 times a year and inspections of each entire surface 

25 mine and each milling operation of a mine at least two 



27 



26 

1 times a year. No advance notice shall be given for any 

2 inspection or investigation under this section except 

3 upon the authorization of the Secretary. 

4 " (b) In making his inspections and investigations under 

5 this Act the Secretary may require the attendance and 

6 testimony of witnesses and the production of evidence under 

7 oath. Witnesses shall be paid the same fees and mileage 

8 that are paid witnesses in the courts of the United States. 

9 In case of a contumacy, failure, or refusal of any person to 

10 obey such an order, any district court of the United States 

11 or the United States courts of any territory or possession, 

12 within the jurisdiction of which such person is found, or re- 

13 sides or transacts business, upon the application by the 

14 Secretary, shall have jurisdiction to issue to such person 

15 an order requiring such person to appear to produce evidence 

16 if, as, and when so ordered, and to give testimony relating 

17 to the matter under investigation or in question, and any 

18 failure to obey such order of the court may be punished by 

19 said court as a contempt thereof. 

20 "(c) Subject to regulations issued by the Secretary, 

21 a representative of the operator and a representative author- 

22 ized by his miners shall be given an opportunity to accom- 

23 pany the Secretary or his authorized representative during 

24 the inspection of any mine under subsection (a) . Where 

25 there is no authorized miner representative, the Secretary or 



20-040 O - 78 - 3 



28 



27 

1 Lis authorized representatives shall consult with a reasonable 

2 number of miners concerning matters of health and safety in 

3 the mine. To the extent that the inspector determines that 

4 more than one representative from each party would further 

5 aid the inspection, he can permit each party to have an equal 

6 number of such additional representatives. Any representa- 

7 tive of miners who is also an employee of the operator shall 

8 suffer no loss of pay as a result of his participation in the 

9 inspection made under this subsection. 

10 "(d) (1) Any miner or representative of miners who 

11 believes that a violation of section 4 (a) exists which 

12 may cause injury, or that an imminent danger exists, 

13 may request an inspection by giving notice to the Secretary 

14 or his authorized representative of such violation or danger. 

15 Any miner or representative of miners who requests such 

16 an inspection on the grounds that an imminent danger exists 

17 shall notify the operator of such request, but compliance by 

18 such miner or representative with the requirement of this 

19 sentence shall not be a jurisdictional prerequisite to the en- 

20 forcement of any provision of this Act. Upon such notification 

21 the Secretary shall make a special inspection in accordance 

22 with the provisions of this section as soon as practicable, to 

23 determine if such violation or danger exists, unless the 

24 Secretary determines there are no reasonable grounds to 

25 believe that a violation or danger exists, in which case he 



29 

28 

1 shall notify the miners or representative of the miners in 

2 writing of such determination. The Secretary shall make 

3 an inspection or give notification under the preceding sen- 

4 tence within thirty days after receipt by the Secretary of a 

5 notification of violation or imminent danger under the first 

6 sentence of this paragraph. 

7 "(2) Prior to or during any inspection of a mine, 

8 any miners or representative of miners employed in such 

9 mine may notify the Secretary or any representative of the 

10 Secretary responsible for conducting the inspection of any 

11 violation of this Act which they have reason to believe exists 

12 in such mine. The Secretary shall inspect such alleged viola- 

13 tion as soon as practicable after, but in no event later than ten 
1^ days after, receipt of such notification, except as provided 

15 under the following sentence. The Secretary shall, by regula- 

16 tion, establish procedures for informal review of any refusal 
1^ by a representative of the Secretary to conduct an inspection 

18 or issue a citation with respect to any such alleged violation 

19 and shall furnish the miners or representatives of miners 

20 requesting such review a written statement of the reasons - for 

21 the Secretary's final disposition of the case within thirty days 

22 after the request for informal review. 

2^ "(3) Upon the request of any individual giving notice 

2^ under this subsection, his name and the names of individual 

2^ miners referred to in such notice shall not appear on any 



30 

29 

1 record published, released, or made available under this Act. 

2 A copy (subject to the requirement of the preceding sen- 

3 tence) of any notice given under this subsection shall be 

4 given, at the time of the inspection, to the operator. 

5 "beqtjibements in cases of accidents; records 

6 and reports 

7 "Sec. 8. (a) (1) For purposes of this section, the 

8 term 'accident' includes any mine explosion, ignition, fire, 

9 unintentional roof fall, or inundation, whether or not results 

10 ing in the death or injury of any miner, and includes any 

11 other accident which results in the death or injury (other 

12 than a minor injury requiring only first aid treatment and 

13 which does not involve medical treatment, loss of conscious- 
ly ness, restriction of work or motion, or transfer to another 

15 job) of any miner. 

16 " (2) Each accident in a mine shall be investigated by 

17 the operator or his agent to determine the cause and the 

18 means of preventing a recurrence. Records of such accidents 

19 and investigations, together with a description of any con- 

20 ditions similar to those which caused the accident which exist 

21 in other areas of the mine, and a description of the actions 

22 taken by the operator to prevent a similar accident in the 

23 same or another area of the mine, shall be kept by the opera- 

24 tor and made available to the Secretary or his authorized 

25 representative. Such records shall be open for inspection by 



31 



HO 

3 miners or representatives of miners who are accompanying 

2 the Secretary or his authorized representative pursuant to 

3 section 7 (c) . 

4 " (3) In the event of any accident occurring in a mine, 

5 the operator shall promptly notify the Secretary thereof and 

6 shall take appropriate measures to prevent the destruction of 

7 any evidence which would assist in investigating the cause or 

8 causes thereof. In the event of any accident occurring in a 

9 mine where rescue and recovery work is necessary, the Soc- 
io retary or an authorized representative of the Secretary shall 

11 take whatever action he deems appropriate to protect the 

12 life of any person, and he may, if he deems it appropriate, 

13 supervise and direct the rescue and recovery activity in such 

14 mine. 

15 "(4) During any inspection in accordance with sec- 

16 tion 7, the Secretary or his authorized representative shall 

17 investigate all conditions relating to accidents which have 

18 occurred in such mine, shall review records pertaining 

19 to accidents required to be maintained under this section, 

20 and shall determine whether actions have been taken by 

21 the operator to prevent accidents similar to any such acci- 

22 dents so recorded, and whether any failure to take preventive 

23 action violates any health and safety standard promulgated 

24 under section 5. 

25 "(b) (1) Each operator shall keep and make available 



32 

31 

1 to the Secretary or the Secretary of Health, Education, 

2 and Welfare, or the Secretary of the Interior, such records 

3 regarding his activities relating to this Act as the Secre- 

4 tary, after consultation with the Secretary of Health, Edu- 

5 cation, and Welfare and the Secretary of the Interior, may 

6 prescribe by regulation as necessary or appropriate for the 

7 enforcement of this Act or for developing information 

8 regarding the causes and prevention of accidents and ill— 

9 nesses in the mines subject to this Act. In order to carry out 

10 the provisions of this subsection such regulations may include 

11 provisions requiring operators to conduct periodic inspec- 

12 tions. 

13 "(2) The Secretary, in cooperation with the Secre- 

14 tary of Health, Education, and Welfare and the Secretary 

15 of the Interior, shall prescribe regulations requiring op- 

16 erators to maintain accurate records of, and to make prompt 

17 reports on, work-related deaths and injuries (other than 

18 minor injuries requiring only first aid treatment and which 

19 do not involve medical treatment, loss of consciousness, re- 

20 striction of work or motion, or transfer to another job) . The 

21 Secretary shall forward to the Secretary of Health, Educa- 

22 tion, and Welfare records of such deaths and injuries which 

23 are caused by disease. 

24 "(3) The Secretary, in cooperation with the Secretary 

25 of Health, Education, and Welfare, shall issue regulations 



33 

32 

1 requiring operators to maintain for an appropriate length of 

2 time accurate records of miner exposures to potentially toxic 

3 materials or harmful physical agents which are required to 

4 he monitored or measured under section 5, and shall develop 

5 and maintain an effective program of collection, compilation, 

6 and analysis of statistics relating to health and safety in 

7 mines subject to this Act, including accurate statistics on all 

8 disabling, serious, or significant work injuries, whether or 

9 not involving loss of time from work, other than minor in- 

10 juries requiring only first aid treatment and which do not 

11 involve medical treatment, loss of consciousness, restriction 

12 of work or motion, or transfer to another job. 

13 "minimum burden on small business 

14 "Sec. 9. (a) Any information obtained by the Sec- 

15 retary, the Secretary of Health, Education, and Welfare, 

16 or a State agency under this Act shall be obtained with a 

17 minimum burden upon operators of small mines subject to 

18 this Act. Unnecessary duplication of efforts in obtaining in- 

19 formation shall be reduced to the maximum extent feasible. 

20 "(b) The Secretary shall provide to each operator of 

21 a mine subject to this Act an accurate and complete copy 

22 of the health and safety standards promulgated under sec- 

23 tion 5 including any emergency temporary standard under 

24 subsection (d) of such section, together with any regulations 

25 under this Act which affect such operator, at the first inspec- 



34 

33 

1 tion in accordance with section 7 which occurs after ( 1 ) the 

2 commencement of operations in such mine or (2) the effec- 

3 tive date of section 2 of the Mine Safety and Health Act of 

4 19771, whichever is later, and at least once each year after 

5 that inspection. In addition, at each inspection of a mine in 

6 accordance with section 7, the Secretary shall furnish the 

7 operator with current copies of any such standards and regu- 
S lations which have been changed since the previous inspection 
9 of such mine. Compliance with this subsection shall not be a 

10 jursidictional prerequisite to the enforcement of any provision 

11 of this Act. 

12 "miner education and access to information 

13 "Sec. 10. (a) Copies of records of miner exposures to 

14 toxic materials or harmful physical agents required to be 

15 maintained under section 8(b) (3) shall be furnished to the 

16 Director of the National Institute for Occupational Safety 

17 and Health established under section 22 of the Occupational 

18 Safety and Health Act of 1970 upon request. The Director 

19 of the National Institute for Occupational Health and Safety 

20 shall advise miners (or their authorized representatives) and 

21 the operator (or his agent) on any injury or risk of injury 

22 indicated by such records, as he deems appropriate. 

23 "(b) (1) The Secretary, in cooperation with the Di- 

24 rector of the National Institute for Occupational Safety 

25 and Health, and in cooperation with any State program of 



35 



34 

1 education and training in the field of mine safety and health, 

2 shall cany out a program of education and training for 

3 miners employed in mines subject to this Act. Such program 

4 shall include publications to be made available to such miners 

5 and regular visits by health experts to such mines, for the 

6 purpose of improving the health and safety of such mines, 

7 and assistance to miners (or their authorized representa- 

8 tives) in evaluating their exposures to toxic materials or 

9 harmful physical agents. 

10 " (2) As part of the program of education and training 

11 for miners under this subsection, the Secretary shall develop, 

12 publish, and disseminate to miners manuals, and annual 

13 supplements to or revisions of such manuals, which contain 

14 an explanation of all health and safety standards promul- 

15 gated under section 5 and all regulations under this Act 

16 which affect the health and safety of miners, and an explana- 

17 tion of personal protective equipment and the use of such 

18 equipment. Such manuals shall be designed so as to assist 

19 miners to become more knowledgeable with respect to health 

20 and safety in mines. 

21 "(c) The Secretary shall issue regulations requiring 

22 that operators, through posting of notices or other appro- 

23 priate means, keep their miners informed of their protections 

24 and obligations under this Act, including the provisions 

25 of applicable standards. Such regulations shall provide for 



36 

35 

1 the posting, at conspicuous locations, of notices (to be pro- 

2 vided to operators by the Secretary) which shall advise 

3 miners of such protections and obligations together with 

4 the address and telephone number of the nearest regional 

5 office of the Department of Labor. Copies of the health 

6 and safety standards promulgated under section 5 and reg- 

7 ulations under this Act which affect such operators which 
g are furnished to such operators under section 10(b) shall 
9 be available in a location in or about each mine subject 

10 to this Act which is easily accessible by miners and at which 

11 miners check in and out on a daily basis. 

12 "citations 

13 "Sec. 11. (a) If, upon inspection or investigation, the 

14 Secretary or his authorized representative believes that an 

15 operator of a mine subject to this Act has violated a require- 

16 ment of section 4 of this Act, of any standard, rule, or 

17 order promulgated pursuant to section 5 of this Act, or of 

18 any regulations prescribed pursuant to this Act, he shall with 

19 reasonable promptness issue a citation to the operator. Each 

20 citation shall be in writing and shall describe with partic- 

21 ularity the nature of the violation, including a reference to 

22 the provision of the Act, standard, rule, regulation, or order 

23 alleged to have been violated. In addition, the citations shall 

24 fix a reasonable time for the abatement of the violation. The 

25 Secretary may prescribe procedures for the issuance of 



37 



36 

1 a notice in lieu of a citation with respect to de minimis viola- 

2 tions which have no substantial direct or immediate rela- 

3 tionship to safety or health. 

4 "(b) Each citation issued under this section, or a copy 

5 or copies thereof, shall be prominently posted, as prescribed 

6 in regulations issued by the Secretary, at or near each 

7 place a violation referred to in the citation occurred, and 

8 at a location in or about the mine in which the violation 

9 occurred at which miners check in and out on a daily basis. 

10 "(c) No citation may be issued under this section after 

11 the expiration of six months following the occurrence of any 

12 violation. 

13 "closure procedures 

14 "Sec. 12. (a) (1) If, upon any inspection or investiga- 

15 tion of a mine which is subject to this Act, an authorized 

16 representative of the Secretary finds that conditions or 

17 practices in such mine are such that an imminent danger 

18 exists, such representative shall determine the extent of the 

19 area of such mine throughout which the danger exists, 

20 and issue an order requiring the operator of such mine to 

21 cause all persons, except those referred to in subsection 

22 (a) (2), to be withdrawn from, and to be prohibited from 

23 entering, such area until an authorized representative of the 

24 Secretary determines that such imminent danger no longer 

25 exists. The issuance of an order under this subsection shall 



38 



37 

1 not preclude the issuance of a citation under section 11 or 

2 the proposing of a penalty under section 16. 

3 "(2) Persons who shall not be prohibited from enter- 

4 ing an area of a mine under an order issued under para- 

5 graph (1) are: 

6 "(A) any person whose presence in such area is 

7 necessary, as determined jointly by the operator of the 

8 mine and an authorized representative of the Secre- 

9 tary, or as determined by an authorized representative 

10 of the Secretary, to eliminate the danger described in 

11 the order; 

12 "(B) any public official whose official duties re- 

13 quired him to enter such area ; or 

14 "(C) any legal or technical consultant, or any rep- 

15 resentative of the employees of the mine, who is a cer- 

16 tified person qualified to make mine examinations, or is 

17 accompanied by such a person, and whose presence in 

18 such area is necessary, as determined jointly by the 

19 operator of the mine and an authorized representative of 

20 the Secretary, or as determined by an authorized rep- 

21 resentative of the Secretary, for the proper investiga- 

22 tion of the conditions described in the order. 

23 "(3) Whenever and as soon as an inspector concludes 

24 that conditions or practices described in paragraph ( 1 ) exist 

25 in any mine, he shall inform the affected miners and operators 



39 



38 

1 of the danger and that he is issuing an order under this sub- 

2 section. 

3 " (b) If the Secretary arbitrarily or capriciously fails 

4 to take appropriate action under subsection (a), any miner 

5 who may be injured by reason of such failure, or the repre- 

6 sentative of such miners, may bring an action against the 

7 Secretary in the United States district court for the district 

8 in which the imminent danger is alleged to exist or the opera- 

9 tor has its principal office, or for the District of Columbia, for 

10 an order to compel the Secretary to issue such an order and 

11 for such further relief, as may be appropriate. 

12 " (c) If, upon any inspection or investigation of a mine 

13 which is subject to this Act, an authorized representative of 

14 the Secretary finds that there has been a failure to correct a 

15 violation for which a final order is in effect under section 13, 

16 within the time period specified pursuant to a citation under 

17 section 11(a), he shall also find the extent of the area 

18 which is affected by such violation. Thereupon, he may 

19 promptly make an order requiring the operator of such mine 

20 to cause all persons in such area, except those referred to in 

21 subsection (a) (2) , to be withdrawn from, and to be prohib- 

22 ited from entering, such area until an authorized representa- 

23 tive of the Secretary determines that such violation has been 

24 corrected. The issuance of an order under this subsection, shall 



40 

39 

1 not preclude the issuance of a citation under section 1 1 or the 

2 proposing of a penalty under section 16. 

3 "(d) Orders issued pursuant to this section shall contain 

4 a detailed description of the conditions or practices which 

5 cause and constitute an imminent danger or a violation of 

6 any health or safety standard promulgated under section 5 

7 or a violation of section 4, as the case may be, and, where 

8 appropriate, a description of the area of the mine from 

9 which persons must be withdrawn and prohibited from 

10 entering. 

11 "(e) Each order issued under this section shall be given 

12 promptly to the operator or his agent by an authorized rep- 

13 resentative of the Secretary issuing such order, and all such 

14 orders shall be in writing and shall be signed by such 

15 representative. 

16 "(f) The Secretary shall by regulation establish a pro- 

17 cedure for informal review of any closure order issued under 

18 this subsection (c), and the Secretary may, in modifying or 

19 setting aside such order, order that the operator shall not be 

20 obligated for part of, or all of, the compensation to which 

21 miners are entitled under section 24, and shall furnish any 

22 operator requesting such review a written statement of the 

23 reasons for the Secretary's final disposition of the matter 

24 within three days after the request for informal review. 

25 "(g) Any person adversely affected or aggrieved by 



41 

40 

1 an order issued under this section may obtain a review of 

2 such order in the United States district court for the district 

3 in which the danger or violation is alleged to exist or in 

4 which the operator has its principal office by filing in such 

5 court within sixty days following the issuance of such order 

6 a written petition praying that the order be modified or set 

7 aside, and the court may, in modifying or setting aside such 

8 order, order that the operator shall not be obligated for part 

9 of, or all of, the compensation to which miners are entitled 

10 under section 24. The modification or setting aside of such 

11 an order by any court shall not preclude the issuance of a 

12 citation under section 1 1 or the proposing of a penalty under 

13 section 16. 

14 "procedures for enforcement 

15 "Sec. 13. (a) If, after an inspection or investigation, 

16 the Secretary issues a citation under section 11 (a) , he shall, 

17 within a reasonable time after the termination of such inspec- 

18 tion or investigation, notify the operator by certified mail of 

19 the penalty, if any, proposed to be assessed under section 16 

20 and that the operator has fifteen working days within which 

21 to notify the Secretary that he wishes to contest the citation 

22 or proposed assessment of penalty. If, within fifteen working 

23 days after the receipt of the notice issued by the Secretary 

24 the operator fails to notify the Secretary that he intends to 

25 contest the citation or proposed assessment of penalty,, and 



42 



41 

1 no notice is filed by any miner or representative of miners 

2 under subsection (c) within fifteen working days after the 

3 citation is posted under section 11 (b) , the citation and the 

4 assessment, as proposed, shall be deemed a final order of the 

5 Commission and not subject to review by any court or 

6 agency. 

7 " (b) If the Secretary has reason to believe that an 

8 operator has failed to correct a violation for which a citation 

9 has been issued within the period permitted for its correction 

10 (which period shall not end until the entry of a final order 

11 by the Commission, in the case of any review proceedings 

12 under this section initiated by the operator wherein the Com- 

13 mission orders, after an expedited hearing, the suspension of 

14 the abatement requirements of the citation after determining 

15 that the operator will suffer irreparable loss or damage from 

16 the application of those requirements) , the Secretary shall 

17 notify the operator by certified mail of such failure and of 

18 the penalty proposed to be assessed under section 16 by 

19 reason of such failure, and that the operator has fifteen work- 

20 ing days within which to notify the Secretary that he wishes 

21 to contest the Secretary's notification or the proposed assess- 

22 ment of penalty. If, within fifteen working days after the 

23 receipt of notification issued by the Secretary, the operator 

24 fails to notify the Secretary that he intends to contest the 

25 notification or proposed assessment of penalty, the notifica- 






43 



42 

, tion and assessment, as proposed, shall be deemed a final 

2 order and not subject to review by any court or agency. 

3 "(c) If an operator notifies the Secretary that he in- 

4 tends to contest a citation issued under section 11 (a) or 

5 notification issued under subsection (a) or (b) of this sec- 
g tion, or if, within fifteen working days after a citation is 
if posted under section 11(b), any miner or representative 
3 of miners files a notice with the Secretary alleging that the 
g period of time fixed in the citation for the abatement 

10 of the violation is unreasonable, the Secretary shall im- 

H mediately advise the Commission of such notification, and 

12 the Commission shall afford an opportunity for a hearing 

13 (in accordance with section 554 of title 5, United States 

14 Code, but without regard to subsection (a) (3) of such sec- 

15 tion) . The Commission shall thereafter issue an order, based 

16 on findings of fact, affirming, modifying, or vacating the 

17 Secretary's citation or proposed penalty or directing other 

18 appropriate relief, and such order shall become final thirty 

19 days after its issuance. Upon a showing by an operator 

20 of a good faith effort to comply with the abatement re- 

21 quirements of a citation, and that abatement has not been 

22 completed because of factors beyond his reasonable control, 

23 the Secretary, after an opportunity for a hearing as pro- 

24 vided in this subsection, shall issue an order affirming or 

25 modifying the abatement requirements in such citation. 



20-040 O - 78 - 4 



44 



43 

1 The rules of procedure prescribed by the Commission shall 

2 provide affected miners or representatives of affected miners 

3 an opportunity to participate as parties to hearings under 

4 this subsection. Commencement of proceedings under this 

5 subsection shall not operate as a stay of the abatement re- 

6 quirements of any citation issued under section 11 (a) unless 

7 the Commission, after determining that the operator will 

8 suffer irreparable loss or damage from the application of 

9 those requirement, so orders, after an expedited hearing. 

10 "(d) (1) No person shall discharge or in any manner 

11 discriminate against or interfere with the exercise of the 

12 statutory rights of any miner because such miner has filed or 

13 made a complaint under or related to this Act, including a 

14 complaint notifying his labor or safety representative of ah 

15 alleged danger or safety or health violation in the mine, or 

16 because such miner has instituted or caused to be instituted 

17 any proceeding under or related to this Act or has testified 

18 or is about to testify in any such proceeding, or because 

19 of the exercise by such miner on behalf of himself or others of 

20 any statutory right afforded by this Act, or because the miner 

21 has refused to work in any area of a mine from which per- 

22 sons must be withdrawn and prohibited from entering pur- 

23 suant to an order under section 12. 

24 "(2) Any miner who believes that he has been dis- 

25 charged, interfered with, or otherwise discriminated against 



45 



44 

1 by any person in violation of paragraph (1) of this subsec- 

2 tion, or any miner who has not received compensation due 

3 under section 24 or who has been deprived of any right 

4 created by or under sections 5(b) (5) (B), 5(b) (6), and 

5 7 (c) may, within thirty days after such violation occurs, 

6 file a complaint with the Secretary alleging such discrimina- 

7 tion or deprivation. Upon receipt of such complaint, the 

8 Secretary shall cause such investigation to be made as the 

9 Secretary deems appropriate. If, upon such investigation, the 

10 Secretary determines that there is probable cause to believe 

11 that the provisions of paragraph ( 1 ) of this subsection have 

12 been violated, or that a miner has not received compensation 

13 due under section 24 or has been deprived of a right created 

14 by or under sections 5(b) (5) (B), 5(b) (6), and 7(c), as 

15 the case may be, the Secretary shall file a complaint with 

16 the Commission within ninety days after such determination 

17 of probable cause, and the Commission shall , immediately 

18 serve upon the alleged violator and the miner notice of the 

19 allegation of such discrimination or deprivation and a pro- 

20 posed order granting appropriate relief. The Commission 

21 shall afford an opportunity for a hearing (in accordance with 

22 section 554 of title 5, United States Code, but without regard 

23 to subsection (a) (3) of such section) and thereafter shall 

24 issue an order, based upon findings of fact, affirming, modify- 

25 ing, or Vacating the proposed order, or directing other ap- 



46 

45 

1 propriate relief; and such order shall become final thirty days 

2 after its issuance. The Commission shall have authority in 

3 such proceedings to require a person committing a violation 

4 of this subsection to take such affirmative action to abate the 

5 violation as the Commission deems appropriate, including, 

6 but not limited to, the rehiring or reinstatement of the miner 

7 to his former position with back pay and interest. 

8 "(3) Within ninety days of the receipt of a complaint 

9 filed under paragraph (2) of this subsection, the Secretary 
10 shall notify the miner in writing of the Secretary's deter- 
.11 mination as to whether a violation has occurred. If the Secre- 

12 tary, upon investigation, determines that the provisions of 

13 paragraph (1) of this subsection have not been violated, or 

14 that there has been no failure to provide compensation due 

15 under section 24, or that there has been no deprivation of a 

16 right created by or under sections 5(b) (5) (B), 5(b) (6), 

17 and 7 (c) , as the case may be, the complainant shall have 

18 the right, within thirty days of notice of the Secretary's 

19 determination, to request a hearing before the Commission, 

20 and the Commission shall conduct a hearing, in accordance 

21 with the provisions of paragraph (2) pertaining to the con- 

22 duct of a hearing, on such complainant's charges. When- 

23 ever an order is issued sustaining the miner's charges under 
.24 this paragraph, a sum equal to the aggregate amount of all 

25 costs and expenses (including attorney's fees) as determined 



47 

46 

1 by the Commission to have been reasonably incurred by the 

2 miner for, or in connection with, the institution and prosecu- 

3 tion of such proceedings, shall be assessed against the person 

4 committing such violation. Proceedings under this section 

5 shall be expedited by the Commission. Any order issued by 

6 the Commission under this paragraph shall be subject to 

7 judicial review in accordance with section 14. Violations by 

8 an operator of paragraph ( 1 ) of this subsection or depriva- 

9 tion by an operator of any right of any miner created by 

10 or under section 5 (b) (5) (B) , 5 (b) (6) , 7 (c) , or 24 shall 

11 be a violation for which a penalty may be assessed under 

12 section 16 (a) . 

13 "judicial eeview 

14 "Sec. 14. (a) (1) Any person adversely affected or 

15 aggrieved by an order of the Commission issued under sub- 

16 section (c) or (d) of section 13 may obtain a review 

17 of such order in any United States court of appeals for 

18 the circuit in which the violation is alleged to have oc- 

19 curred or where the operator has its principal office, or 

20 in the Court of Appeals for the District of Columbia Cir- 

21 cuit, by filing in such court within sixty days following 

22 the issuance of such order a written petition praying that 

23 the order be modified or set aside. A copy of such petition 

24 shall be forthwith transmitted by the clerk of the court to 

25 the Commission or to the Secretary, whichever is appro- 



48 

47 

1 priate, and to the other parties, and thereupon the Commis- 

2 sion or the Secretary, whichever is appropriate, shall file in 

3 the court the record in the proceeding as provided in section 

4 2112 of title 28, United States Code. Upon such filing, the 

5 court shajl have jurisdiction of the proceeding and of the 

6 question determined therein, and shall have power to grant 

7 such temporary relief or restraining order as it deems just 

8 and proper, and to make and enter upon the pleadings, testi- 

9 mony, and proceedings set forth in such record a decree 

10 affirming, modifying, or setting aside in whole or in part, the 

11 order of the Commission or the Secretary, as the case may 

12 be, and enforcing the same to the extent that such order is 

13 affirmed or modified. The commencement of proceedings 

14 under this subsection shall not, unless ordered by the court, 

15 operate as a stay of the order of the Commission or the Sec- 

16 retary, as the case may be. 

17 "(2) In the case of an order of the Commission, no 

18 objection that has not been urged before the Commission 

19 shall be considered by the court, unless the failure or neglect 
2G to urge such objection shall be excused because of extraordi- 

21 nary circumstances. The findings of the Commission with 

22 respect to questions of fact, if supported by substantial evi- 

23 dence on the record considered as a whole, shall be conclu- 

24 sive. If any party shall apply to the court for leave to adduce 

25 additional evidence and shall show to the satisfaction of the 



49 

48 

1 court that such additional evidence is material and that there 

2 were reasonable grounds for the failure to adduce such evi- 

3 dence in the hearing before the Commission, the court may 

4 order such additional evidence to be taken before the Com- 

5 mission and to be made a part of the record. The Commission 

6 may modify its findings as to the facts, or make new findings, 

7 by reason of additional evidence so taken and filed, and it 

8 shall file such modified or new findings, which findings with 

9 respect to questions of fact, if supported by substantial evi- 

10 dence on the record considered as a whole, shall be con- 

11 elusive, and its recommendations, if any, for the modification 

12 or setting aside of its original order. 

13 "(3) Upon the filing of the record with it, the juris- 

14 diction of the court shall be exclusive and its judgment and 

15 decree shall be final, except that the same shall be subject 

16 to review by the Supreme Court of the United States, as 

17 provided in section 1254 of title 28, United States Code. 

18 Petitions filed under this subsection shall be heard ex- 

19 peditiously. 

20 "(b) The Secretary may also obtain review of any final 

21 order of the Commission by filing a petition for such relief 

22 in the United States court of appeals for the circuit in which 

23 the alleged violation occurred or in which the operator has 

24 its principal office, and the provisions of subsection (a) shall 

25 govern such proceedings to the extent applicable. If no peti- 



50 



49 

1 tion for review, as provided in subsection (a) , is filed within 

2 sixty days after service of the Commission's order, the Com- 

3 mission's findings of fact and order shall be conclusive in 

4 connection with any petition for enforcement which is filed 

5 by the Secretary after the expiration of such sixty-day pe- 

6 riod. In any such case, as well as in the case of a noncon- 

7 tested citation or notification by the Secretary which has 

8 become a final order of the Commission under subsection 

9 (a) or (b) of section 13, the clerk of the court, unless other- 

10 wise ordered by the court, shall forthwith enter a decree en- 

11 forcing the order and shall transmit a copy of such decree to 

12 the Secretary and the operator named in the petition. In 

13 any contempt proceeding brought to enforce a decree of a 

14 court of appeals entered pursuant to this subsection or sub- 

15 section (a) , the court of appeals may assess the penalties 

16 provided in section 16, in addition to invoking any other 

17 available remedies. 

18 " (c) The Secretary may institute a civil action for 

19 relief, including a permanent or temporary injunction, re- 

20 straining order, or any other appropriate order in the dis- 

21 triot court of the United States for the district in which a 

22 mine is located or in which the operator of such mine has 

23 his principal office, whenever such operator or his agent 

24 (1) violates or fails or refuses to comply with any order 

25 issued under section 12, or (2) interferes with, hinders, 



51 



1 or delays the Secretary or his authorized representative, 

2 or the Secretary of Health, Education, and Welfare or 

3 his authorized representative, in carrying out the provi- 

4 sions of the Act, or (3) refuses to admit such representatives 

5 to the mine, or (4) refuses to permit the inspection of the 

6 mine, or the investigation of an accident or occupational 

7 disease occurring in, or connected with, such mine, or (5) 

8 refuses to furnish any information or report requested by 

9 the Secretary or the Secretary of Health, - Education, and 

10 Welfare in furtherance of the provisions of this Act, or 

11 (6) refuses to permit access to, and copying of, such rec- 

12 ords as the Secretary or the Secretary of Health, Education, 

13 and Welfare determines necessary in carrying out the 

14 provisions of this Act. The court shall have jurisdiction to 

15 provide such relief as may be appropriate. Temporary 

16 restraining orders shall be issued in accordance with rule 65 

17 of the Federal Rules of Civil Procedure except that the 

18 time limit in such orders, when issued without notice, shall 

19 be seven days from the date of entry. Except as otherwise 

20 provided herein, any relief granted by the court to enforce 

21 an order under clause (1) of this subsection shall continue 

22 in effect until the completion or final termination of all 

23 proceedings for review of such order under this Act, unless, 

24 prior thereto, the district court granting such relief sets it 

25 aside or modifies it. In any action instituted under this 



52 

5L 

1 subsection to enforce an order issued by the Secretary after 

2 a public hearing in accordance with section 554 of title 5 of 

3 the United States Code, the findings of the Commission or 

4 the Secretary, as the case may be, if supported by sub- 

5 stantial evidence on the record considered as a whole, shall 

6 be conclusive. 

7 "representation in civil litigation 

8 "Sec. 15. Except as provided in section 518 (a) of title 

9 28, United States Code, relating to litigation before the 

10 Supreme Court, the Solicitor of Labor may appear for and 

11 represent the Secretary in any civil litigation brought under 

12 this Act but all such litigation shall be subject to the di- 

13 rection and control of the Attorney General. 

14 "penalties 

15 "Sec. 16. (a) Any operator who violates a safety or 

16 health standard prescribed by or under this Act, or any of 

17 the requirements of section 8, or any rule, order, or regula- 

18 tion promulgated pursuant to this Act, may be assessed a 

19 civil penalty of not more than $1,000 for each such violation. 

20 "(b) Any operator who fails to correct a violation for 

21 which a citation has been issued under section 11 (a) within 

22 the period permitted for its correction (which period shall 

23 not end until the entry of a final order by the Commission, 

24 in the case of any review proceedings under section 13 initi- 

25 ated by the operator wherein the Commission orders, after 



53 

52 

1 an expedited hearing, the suspension of the abatement re- 

2 quirements of the citation after determining that the operator 

3 will suffer irreparable loss or damage from the application of 

4 those requirements, or until the entry of an order of the 

5 court, in the case of any review proceedings under section 

6 14 initiated by the operator wherein the court orders the 

7 suspension of the abatement requirements of the citation) 

8 shall be assessed a civil penalty of not more than $1,000 

9 for each day during which such failure or violation continues. 

10 " (c) Whenever a corporate operator violates a safety 

11 or health standard prescribed by or under this Act, or any 

12 rule, order, or regulation promulgated pursuant to this Act, 

13 any director, officer, or agent of such corporation who know- 

14 ingly authorized, ordered, or carried out such violation shall 

15 be subject to the same civil penalties, fines, and imprison- 

16 ment that may be imposed upon a person under subsection 

17 (a), (b), (d), (e), (f), or (g) of this section. 

18 " (d) Any operator who willfully or repeatedly violates 

19 a safety or health standard prescribed by or under this Act, 

20 or any rule, order, or regulation promulgated pursuant to 

21 this Act, shall be assessed a civil penalty of not more than 

22 $10,000. 

23 "(e) Any operator who willfully or repeatedly violates 

24 a safety or health standard prescribed by or under this 

25 Act, or any rule, order, or regulation promulgated pursuant 



54 



53 

1 to this Act, and that violation causes death to any individual, 

2 shall upon conviction, be punished by a fine of not more than 

3 $25,000 or imprisonment for not more than one year, or 

4 both. 

5 "(f) Any person who gives unauthorized advance 

6 notice of any inspection to be conducted under this Act 

7 shall, upon conviction, be punished by a fine of not more 

8 than $1,000 or by imprisonment for not more than six 

9 months, or by both. 

10 "(g) Whoever knowingly makes any false statement, 

11 representation, or certification in any publication, record, 

12 report, plan, or other document filed or required to be main- 

13 tained pursuant to this Act shall, upon conviction, be 

14 punished by a fine of not more than $1,000, or by imprison- 

15 ment for not more than six months, or by both. 

16 "(h) Any operator who violates any of the posting re- 

17 quirements, as prescribed under the provisions of this Act, 

18 shall be assessed a civil penalty of up to $500 for each 

19 violation. 

20 " (i) Any miner who willfully violates the mandatory 

21 safety standards relating to smoking or the carrying of 

22 smoking materials, matches, or lighters shall be subject to a 

23 civil penalty assessed by the Commission of not more than 

24 $250 for each occurrence of such violation. 

25 "(j) The Commission shall have authority to assess 



55 



54 

1 all civil penalties provided in this Act. In assessing civil 

2 monetary penalties, the Commission shall give due considera- 

3 tion to the gravity of the violation, the good faith of the 

4 person charged, the history of previous violations, and the 

5 appropriateness of the penalty with respect to the size of the 

6 business of any mine operator being charged: Provided, 

7 That, in proposing civil penalties under this Act, the Sec- 

8 retary may rely upon a summary review of the information 

9 available to him and shall not be required to make findings 

10 of fact concerning the above factors. 

11 "(k) Civil penalties owed under this Act shall be paid 

12 to the Secretary for deposit into the Treasury of the United 

13 States and shall accrue to the United States and may be 

14 recovered in a civil action in the name of the United States 

15 brought in the United States district court for the district 

16 where the violation is alleged to have occurred or where 

17 the employer resides or maintains a place of business. 

18 "effect on state laws 

19 "Seo. 17. (a) Nothing in this Act shall prevent any 

20 State agency or court from exercising enforcement or other 

21 authority under the State law to protect the public health 

22 and welfare. 

23 "(b) Nothing in this Act shall prevent any State from 

24 carrying out a program (independent of or in conjunction 

25 with the program developed under section 10(b) ) of edu- 



56 



55 

1 cation and training in the field of safety and health in mines 

2 subject to this Act, or any program of consultation, gather- 

3 ing and compilation of statistics, or research and develop- 

4 ment of technology in such field. 

5 "the federal metal and nonmetallic mine safety 

6 AND HEALTH COMMISSION 

7 "Sec. 18. (a) The Federal Metal and Nonmetallic 

8 Mine Safety and Health Commission is hereby established. 

9 The Commission shall consist of three members, appointed by 

10 the President by and with the advice and consent of the 

11 Senate, from among persons who by reason of training, edu- 

12 cation, or experience are qualified to carry out the functions 

13 of the Commission under this Act. The President shall desig- 

14 nate one of the members of the Commission to serve as 

15 Chairman. 

16 " (b) The terms of the members of the Commission shall 

17 be six years, except that — 

18 " ( 1 ) members of the Commission, first taking office 

19 after the date of enactment of the Mine Safety and 

20 Health Act of 1977, shall serve, as designated by the 

21 President at the time of appointment, one for a term of 

22 two years, one for a term of four years, and one for a 

23 term of six years ; and 

24 " (2) a vacancy caused by the death, resignation, or 

25 removal of any member prior to the expiration of the 



57 

56 

1 term for which he was appointed shall be filled only for 

2 the remainder of such unexpired term. 

3 Any member of the Commission may be removed by the 

4 President for inefficiency, neglect of duty, or malfeasance in 

5 office. 

6 "(3) The Chairman shall be responsible on behalf 

7 of the Commission for the administrative operations of 

8 the Commission. The Commission shall appoint such em- 

9 ployees as it deems necessary to assist in the performance 

10 of the Commission's functions and to fix their compensa- 

11 tion in accordance with the provisions of chapter 51 and 

12 subchapter III of chapter 53 of title 5, United States 

13 Code, relating to classification and general pay rates. The 

14 Commission shall appoint such hearing examiners as it 

15 deems necessary to carry out the functions of the Com- 
3fi mission. Assignment, removal, and compensation of hear- 

17 ing examiners shall be in accordance with sections 3105, 

18 3344, 5362, and 7521 of title 5, United States Code. 

19 " (c) Two members of the Commission shall constitute 

20 a quorum and official action can be taken only on the affirma- 

21 tive vote of at least two members. 

22 " (d) A hearing examiner appointed by the Commission 

23 to hear matters under this Act shall hear, and make a deter- 

24 mination upon, any proceeding instituted before the Commis- 

25 sion and any motion in connection therewith, assigned to 



58 

57 

1 such hearing examiner by the Commission, and shall make a 

2 report of any such determination which constitutes his final 

3 disposition of the proceedings. The report of the hearing 

4 examiner shall become the final order of the Commission 

5 within thirty days after its issuance, unless within such period 

6 any member of the Commission has directed that such report 

7 shall be reviewed by the Commission. 

8 "(e) (1) Section 5314 of title 5, United States Code, 

9 is amended by adding at the end thereof the following new 

10 paragraph : 

11 "'(64) Chairman, Federal Metal and Nonmetallic 

12 Mine Safety and Health Commission'. 

13 "(2) Section 5315 of title 5, United States Code, is 

14 amended by adding at the end thereof the following new 

15 paragraph : 

16 " ' (108) Members, Federal Metal and Nonmetallic 

17 Mine Safety and Health Commission\ 

18 " (3) The principal office of the Commission shall be in 

19 the District of Columbia. Whenever the Commission deems 

20 that the convenience of the public or of the parties may be 

21 promoted, or delay or expense may be minimized, it may 

22 hold hearings or conduct other proceedings at any other 

23 place. 

24 " (4) Every official act of the Commission shall be en- 

25 tered of record, and its hearings and records snail be open 



59 



58 

1 to the public. The Commission is authorized to make such 

2 rules as are necessary for the orderly transaction of its pro- 

3 ceedings. Unless the Commission has adopted a different rule, 

4 its proceeding shall be in accordance with the Federal Rules 

5 of Civil Procedure. 

6 " (5) The Commission may order testimony to be taken 

7 by deposition in any proceeding pending before it at any 

8 stage of such proceeding. Any person may be compelled to 

9 appear and depose, and to produce books, papers, or docu- 

10 ments, in the same manner as witnesses may be compelled 

11 to appear and testify and produce like documentary evidence 

12 before iie Commission. Witnesses whose depositions are 

13 taken under this paragraph, and the persons taking such 

14 depositions, shall be entitled to the same fees as are paid for 

15 like services in the courts of the United States. 

IB " (6) For the purpose of any proceeding before the 

17 Commission, the provisions of section 11 of the National 

18 Labor Relations Act (29 U.S.C. 161) are hereby made 

19 applicable to the jurisdiction and powers of tlhe Commission. 

20 "assistant secret aey for mine safety and health 

21 "Sec. 19. (a) There is established in the Department 

22 of Labor an office of the Assistant Secretary for Mine 

23 Safety and Health, which shall be filled by appointment by 

24 the President, by and with the advice and consent of the 

25 Senate. The Secretary shall carry out his functions under this 



20-040 O - 78 - 5 



60 

59 

1 Act (except section 5(a) (3) and section 22(c)) through 

2 the Assistant Secretary for Mine Safety and Health. 

3 "(b) Section 5315 of title 5, United States Code, is 

4 amended by adding at the end thereof the following new 

5 paragraph : 

6 '"(109) Assistant Secretary for Mine Safety and 

7 Health.' 

8 "advisoey committee 

9 "Sec. 20. (a) (1) There is hereby established a Na- 

10 tional Advisory Committee on Metal and Nonmetallic Mine 

11 Safety and Health consisting of twelve members appointed 

12 by the Secretary, four of whom are to be designated by the 

13 Secretary of Health, Education, and Welfare and the Secre- 

14 tary of the Interior, without regard to the provisions of title 

15 5, United States Code, governing appointments in the com- 
lfi petitive service, and composed of representatives of manage- 

17 ment, labor, metal and nonmetallic mine health and safety 

18 professions and of the public. The Secretary shall designate 

19 one of the public members as Chairman. The members shall 

20 be selected upon the basis of their experience and compe- 

21 tence in the field of metal and nonmetallic mine health and 

22 safety. 

23 "(2) The Committee shall advise, consult with, and 

24 make recommendations to the Secretary, the Secretary of 

25 Health, Education, and Welfare, and the Secretary of the 



61 



60 

1 Interior on matters relating to the administration of this Act. 

2 The Committee shall hold no fewer than two meetings dur- 

3 ing each calendar year. All meetings of the Committee shall 

4 be open to the public and a transcript shall be kept and 

5 made available for public inspection. 

6 " (3) The members of the Committee shall be compen- 

7 sated in accordance with the provisions of section 3109 of 

8 title 5, United States Code. 

9 " (4) The Secretary shall furnish to the Committee an 

10 executive secretary and such secretarial, clerical, and other 

11 services as are deemed necessary to the conduct of its 

12 business. 

13 "publication, annual report, and regulations 

14 "Sec. 21. (a) The Secretary, the Secretary of Health, 

15 Education, and Welfare, and the Secretary of the Interior 

16 are authorized to compile, analyze, and publish, either in 

17 summary or detailed form, all reports or information ob- 

18 tained under this Act. 

19 "(b) The Secretary shall transmit to the Congress no 

20 later than February 1 of each year a report on the adminis- 

21 tration of this Act, including the progress toward achieving 

22 the purposes of this Act, the needs and requirements in the 

23 field of metal and nonmetalhc mine safety, any other relevant 

24 information (including information regarding health and 

25 safety standards established under section 5, and a summary 



62 



61 

1 of inspection and enforcement activity undertaken, and anal- 

2 ysis and evaluation of research activities) , and recommenda- 

3 tions for additional legislation. 

4 "(c) (1) The Secretary, the Secretary of Health, Edu- 

5 cation, and Welfare, and the Secretary of the Interior shall 

6 each prescribe such rules and regulations as he may deem 

7 necessary to carry out his responsibilities under this Act, in- 

8 eluding rules and regulations dealing with the inspection of 

9 a mine subject to this Act. 

10 "(2) Any rule or regulation prescribed under para- 

11 graph ( 1 ) may by resolution of either House of Congress 

12 be disapproved, in whole or in part, if such resolution of 

13 disapproval is adopted not later than the end of the first 

14 period of 60 calendar days when Congress is in session 

15 (whether or not continuous) which period begins on the 

16 date such rule or regulation is finally adopted by the Sec- 

17 retary adopting same. The Secretary adopting such rule 

18 or regulation shall transmit such rule or regulation to each 

19 House of Congress immediately upon its final adoption. 

20 Upon adoption of such a resolution of disapproval by either 

21 House of Congress, such rule or regulation, or part thereof, 

22 as the case may be, shall cease to be in effect. 

23 " (3) Congressional inaction on or rejection of a resolu- 

24 tion of disapproval shall not be deemed an expression of 

25 approval of such rule. 



63 

62 

I 

2 "Sec. 22. (a) The functions of the Secretary of the 

3 Interior under this Act (as this Act was in effect immediately 

4 prior to the effective date of section 2 of the Mine Safety 

5 and Health Act of 1977) are transferred to the Secretary. 

6 except those which are transferred to the Commission or to 

7 the Secretary of Health, Education, and Welfare or which 

8 remain as functions of the Secretary of the Interior under 

9 this Act (as in effect on the effective date of section 2 of 

10 the Mine Safety and Health Act of 1977 ) . 

11 "(b) (1) All unexpended balances of appropriations, 

12 personnel, property, records, obligations, and commitments 

13 which are used primarily with respect to any function trans- 

14 ferred under the provisions of subsection (a) of this section 

15 to the Secretary shall be transferred to the Department of 

16 Labor. The transfer of personnel pursuant to this para- 

17 graph shall be without reduction in classification or com- 

18 pensation for one year after such transfer, except that the 

19 Secretaiy shall have full authority to assign personnel dur- 

20 ing such one-year period in order to efficiently carry out 
2i functions transferred to him under this section. 

22 " (2) All orders, decisions, determinations, rules, regula- 

23 tions, permits, contracts, certificates, licenses, and privileges 

24 (A) which have been issued, made, granted, or allowed 

25 to become effective in the exercise of functions which are 



64 



63 

1 transferred under this section by any department or agency, 

2 any functions of which are transferred by this section, and 

3 (B) which are in effect at the time this section takes effect, 

4 shall continue in effect according to their terms until modi- 

5 fieoV, terminated, superseded, set aside, or repealed by the 

6 Secretary, the Commission, the Secretary of Health, Edu- 

7 cation, and Welfare, by any court of competent jurisdiction, 

8 or by operation of law. 

9 " (3) The provisions of this section shall not affect any 

10 proceedings pending at the time this section takes effect 

11 before any department or agency, functions of which are 

12 transferred by this section; except that such proceedings, to 

13 the extent that they relate to functions so transferred, shall 

14 be continued before the Secretary or the Commission. 

15 Orders shall be issued in such proceedings, appeals shall 

16 be taken therefrom, and payments shall be made pursuant to 

17 such orders, as if this section had not been enacted; and 

18 orders issued in any such proceedings shall continue in effect 

19 until modified, terminated, superseded, or repealed by the 

20 Secretary, the Commission, by a court of competent juris- 

21 diction, or by operation of law. 

22 " (4) The provisions of this section shall not affect suits 

23 commenced prior to the date this section takes effect and in 

24 all such suits proceedings shall be had, appeals taken, and 

25 judgments rendered, in the same manner and effect as if 



65 



64 

1 this section had not been enacted; except that if before the 

2 date on which this section takes effect, any department or 

3 agency (or officer thereof in his official capacity) is a party 

4 to a suit involving functions transferred to the Secretary, then 

5 such suit shall be continued by the Secretaiy. No cause of 

6 action, and no suit, action, or other proceeding, by or against 

7 any department or agency (or officer thereof in his official 

8 capacity) functions of which are transferred by this section, 

9 shall abate by reason of the enactment of this section. Causes 

10 of actions, suits, actions, or other proceedings may be asserted 

11 by or against the United States or the Secretary as may be 

12 appropriate and, in any litigation pending when this section 

13 takes effect, the court may at any time, on its own motion 

14 or that of any party, enter an order which will give effect to 

15 the provisions of this paragraph. 

16 " (c) In making a determination under section 5 (a) (3) 

17 of this Act of which of the occupational health and safety 

18 standards promulgated under section 6 of the Occupational 

19 Safety and Health Act of 1970 pertain to the milling of 

20 minerals in mines subject to this Act, including a determina- 

21 tion of what constitutes mineral milling for purposes of section 

22 3 (a) (2) , the Secretary shall give due consideration to the 

23 convenience of administration resulting from the delegation 

24 to one Assistant Secretary of all authority with respect to 



66 



65 

1 the health and safety of miners employed at one physical 

2 establishment 

3 "(d) For purposes of this section, (1) the term 'func- 

4 tion' includes power and duty, and (2) the transfer of a 

5 function, under any provision of law, of an agency or the 

6 head of a department shall also be a transfer of all functions 

7 under such law which are exercised by any officer or offi- 

8 cer of such agency or department. 

9 "research and related activities 

10 "Sec. 23. (a) (1) The Secretary of Health, Education, 

11 and Welfare and the Secretary of the Interior, as appropriate, 

12 after consultation with the Secretary and with other appro- 

13 priate Federal departments or agencies, shall conduct (di- 

14 rectly or by grants or contracts) research, experiments, and 

15 demonstrations relating to safety and health in mines subject 

16 to this Act including studies of lung and respiratory diseases 

17 and carcinogenic substances, and studies of psychological 

18 factors involved, and relating to innovative methods, tech- 

19 niques, and approaches for dealing with safety and health 

20 problems associated with mines subject to this Act. 

21 "(2) The Secretary shall coordinate, as he deems ap- 

22 propriate, any research, experiments, or demonstrations un- 

23 der this Act conducted by the Secretary of Health, Educa- 

24 tion, and Welfare and the Secretary of the Interior. 



67 



1 "(b) Activities under subsection (a) in the field of mine 

2 health, including research related to the development of per- 

3 sonal protective equipment, shall be carried out by the 

4 Secretary of Health, Education,, and Welfare, and activities 

5 under subsection (a) in the field of mine safety shall be 

6 carried out by the Secretary of the Interior. 

7 "(c) Within two years after the date of enactment of the 

8 Mine Safety and Health Act of 1977, and annually there- 

9 after, the Secretary of Health, Education, and Welfare shall 

10 conduct and publish industrywide studies of the effect of 

11 chronic or low-level exposure to mine materials, processes, 

12 and stresses on the potential for illness, disease, or loss of 

13 functional capacity in aging adults. 

14 "(d) The Secretary of Health, Education, and Welfare 

15 shall from time to time consult with the Secretary 

16 in order to develop specific plans for such research, demon- 

17 strations, and experiments as are necessary to produce 

18 criteria, including criteria identifying toxic substances, 

19 enabling the Secretary to meet his responsibility for 

20 the formulation of safety and health standards under this 

21 Act; and the Secretary of Health, Education, and Welfare, 

22 on the basis of such research, demonstrations, and experi- 

23 ments and any other information available to him, shall 

24 develop and publish at least annually such criteria as will 

25 effectuate the purposes of this Act. 



68 

67 

1 " (e) The Secretary of Health, Education, and Welfare, 

2 on the basis of research, demonstrations, and experiments, 

3 and any other information available to him, shall develop 

4 criteria dealing with toxic materials and harmful physical 

5 agents and substances which will describe exposure levels that 

6 are safe for various periods of employment in mines subject to 

7 this Act, including but not limited to the exposure levels at 

8 which no miner will suffer impaired health or functional 

9 capacities or diminished life expectancy as a result of his work 

10 experience. 

11 "(f) The Secretary of Health, Education, and Welfare 

12 shall also conduct special research, experiments, and demon- 

13 strations relating to safety and health in mines subject to 
H this Act as are necessary to explore new problems, including 

15 those created by new technology in mine safety and health, 

16 which may require ameliorative action beyond that which 

17 is otherwise provided for in the operating provisions of this 

18 Act. The Secretary of Health, Education, and Welfare shall 

19 also conduct research into the motivational and behavioral 

20 factors relating to the field of mine safety and health. 

21 " (g) The Secretary of Health, Education, and Welfare, 

22 in order to comply with his responsibilities under subsection 

23 (d) , and in order to develop needed information regarding 

24 potentially toxic substances or harmful physical agents, may 

25 prescribe regulations requiring employers to measure, record, 



69 



68 

1 and make reports on the exposure of miners to substances or 

2 physical agents which the Secretary of Health, Education, 

3 and Welfare reasonably believes may endanger the health or 

4 safety of miners. The Secretary of Health, Education, and 

5 Welfare also is authorized to establish such programs of 

6 medical examinations and tests as may be necessary for 

7 determining the incidence of occupational illnesses and the 

8 susceptibility of miners to such illnesses. Nothing in this or 

9 any other provision of this Act shall be deemed to authorize 

10 or require medical examination, immunization, or treatment 

11 for those who object thereto on religious grounds, except 

12 where such is necessary for the protection of the health or 

13 safety of others. Upon the request of any operator who is 

14 required to measure and record exposure of miners to sub- 

15 stances or physical agents as provided under this Act, the 

16 Secretary of Health, Education, and Welfare shall furnish 

17 full financial or other assistance to such employer for the 

18 purpose of defraying any additional expense incurred by him 

19 in carrying out the measuring and recording as provided in 

20 this subsection. 

21 " (h) The Secretary of Health, Education, and Welfare 

22 shall publish within six months after the enactment of the 

23 Mine Safety and Health Act of 1977 and thereafter as needed 

24 but at least annually a list of all known toxic substances and 

25 physical agents occurring or found in mines subject to this 



70 



• 69 

1 Act by generic family or other useful grouping, and the con- 

2 centrations at which such toxicity is known to occur. He 

3 shall determine following a written request by any operator 

4 or authorized representative of miners, specifying with rea- 

5 sonable particularity the grounds on which the request is 

6 made, whether any substance or agent normally found in 

7 the mine has potentially toxic effects in such concentrations 

8 as used or found; and shall submit such determination both 

9 to operators and affected miners as soon as possible. Upon 

10 request of any individual for such determination under this 

11 subsection, his name and the names of individual miners 

12 referred to in such request shall not appear on any record 

13 published, released, or made available under this Act. If 

14 the Secretary of Health, Education, and Welfare determines 

15 that any substance is potentially toxic or harmful at the con- 

16 centrations in which it is used or found in a mine, and such 

17 substance is not covered by a safety or health standard 

18 promulgated under section 5, the Secretary of Health, Edu- 

19 cation, and Welfare shall immediately submit such determi- 

20 nation to the Secretary, together with all pertinent criteria. 

21 " (i) The Secretary of Health, Education, and Welfare 

22 is authorized to make investigations and question operators 

23 and miners as provided in section 7 of this Act, and have 

24 access to all records pertaining to employee exposures, and 

25 to make medical examinations available to miners exposed 



71 



70 

1 to health and safety hazards in mines subject to this Act, in 

2 order to carry out his functions and responsibilities under this 

3 section. The results of such medical examinations shall be 

4 made available to the miner and his authorized representative. 

5 " (j) The Secretary is authorized to enter into contracts, 

6 agreements, or other arrangements with appropriate public 

7 agencies or private organizations for the purpose of con- 

8 ducting studies relating to his responsibilities under this Act. 

9 In carrying out his responsibilities under this subsection, the 

10 Secretary shall cooperate with the Secretary of Health, Edu- 

11 cation, and Welfare, the Secretary of the Interior, and any 

12 other appropriate administrative head of any agency of the 

13 United States, in order to avoid any duplication of efforts 

14 under this section. 

15 " (k) In carrying out his responsibilities under this Act, 

16 the Secretary is authorized to — 

17 " ( 1 ) use, with the consent of any Federal agency, 

18 the services, facilities, and personnel of such agency, 

19 with or without reimbursement, and with the consent of 

20 any State or political subdivision thereof, accept and use 

21 the services, facilities, and personnel of any agency of 

22 such State or subdivision with reimbursement; and 

23 * "(2) employ experts and consultants or organiza- 

24 tions thereof as authorized by section 3109 of title 5, 

25 United States Code, except that contracts for such em- 



72 



71 

1 ployment may he renewed annually ; compensate individ- 

2 uals so employed at rates not in excess of the rate 

3 specified at the time of service for grade GS-18 under 

4 section 5332 of title 5, United States Code, including 

5 traveltime, and allow them while away from their homes 

6 or regular places of business, travel expenses (including 

7 per diem in lieu of subsistence) as authorized by section 

8 5703 of title 5, United States Code, for persons in the 

9 Government service employed intermittently, while so 

10 employed. 

11 "(1) Information obtained by the Secretary, the Sec- 

12 retary of Health, Education, and Welfare, and the Secretary 

13 of the Interior under this section shall be disseminated 

14 by the Secretary to operators of mines subject to this Act 

15 and miners and organizations thereof. 

16 " (m) The functions of the Secretary of Health, Educa- 

17 tion, and Welfare under this Act shall, to the extent feasible, 

18 be delegated to the Director of the National Institute for 

19 Occupational Safety and Health established by section 22 

20 of the Occupational Safety and Health Act of 1970. 

21 "entitlement of minebs 

22 "Sec. 24. H a mine or area of a mine is closed by an 

23 order issued under section 12, all miners who are idled as a 

24 result of such order including any miner who refuses to 

25 work in any area of a mine from which persons must be with- 



73 



72 

1 drawn and prohibited from entering pursuant to such an 

2 order, in cases where the operator fails or refuses to comply 

3 with such order, shall be entitled (except as provided in sec- 

4 tion 12 (f) and section 12 (g) ) to full compensation by the 

5 operator at their regular rates of pay for the period they 

6 are idled, but for not more than one week. 

7 "confidentiality of trade secrets 

8 "Sec. 25. All information reported to or otherwise 

9 obtained by the Secretary or his representative in connection 

10 with any inspection or proceeding under this Act which con- 

11 tains or which might reveal a trade secret referred to in 

12 section 1905 of title 18 of the United States Code shall be 

13 considered confidential for the purpose of that section, except 

14 that such information may be disclosed to other officers or 

15 employees concerned with carrying out this Act or when 

1 6 relevant in any proceeding under this Act. In any such 

17 proceeding the Secretary, the Commission, or the court shall 

18 issue such orders as may be appropriate to protect the confi- 

19 dentiality of trade secrets. 

20 "keport of commencement of operation of a mine 

21 "Sec. 26. Each operator of a mine subject to this Act 

22 who employs three or more miners shall report any com- 

23 mencement, after the effective date of section 2 of the Mine 

24 Safety and Health Act of 1977, of operations in such mine 

25 to the Secretary. 



74 

73 

1 "economic assistance to small mine operators 

2 "Sec. 27. (a) Section 7 (b) of the Small Business Act 

3 ( 15 U.S.C. 636 (b) ) is amended— 

4 " ( 1 ) by striking out the period at the end of para- 

5 graph (8) and inserting in lieu thereof '; and'; and 

6 "(2) by adding after paragraph (8) a new para- 

7 graph as follows: 

8 " ' (9) to make such loans (either directly or in 

9 cooperation with banks or other lending institutions 

10 through agreements to participate on an immediate or 

11 deferred basis) as the Administration may determine to 

12 be necessary or appropriate to assist any small business 

13 concern, which is an operator of a mine as defined in the 

14 Federal Metal and Xonmetallic Mine Safety Act and 

15 which is subject to that Act; in effecting additions to or 

16 alterations in the equipment, facilities, or methods of 

17 operation of such business in order to comply with the 

18 applicable standards promulgated pursuant to section 5 
29 of the Federal Metal and Nonmetallic Mine Safety Act, 
20 if the Administration determines that such concern is 
2i likely to suffer substantial economic injury without assist- 

22 ance under this paragraph/ 

23 "(b) The third sentence of section 7(b) of the Small 

24 Business Act (15 U.S.C. 636(b) ) is amended by striking 

25 out 'or (8) ' and inserting in lieu thereof ' (8) , or (9) \ 



75 

74 

1 "(c) Section 4 (c) (1) of the Small Business Act (15 

2 ILS.C. 633(c) (1)) is amended by inserting '7(b) (9)/ 

3 after 7 (b) (8)/. 

4 "(d) Loans may also be made or guaranteed for the 

5 purposes set forth in section 7 (b) (9) of the Small Business 

6 Act (as added by the amendments made by subsection (a) ) 

7 pursuant to the provisions of section 202 of the Public Works 

8 and Economic Development Act of 1965. 

9 "authorization of appropriations 

10 "Sec. 28. (a) There are hereby authorized to be appro- 

11 priated to the Secretary and the Commission for any fiscal 

12 year such sums as may be necessary to carry out the pro- 

13 visions of this Act. 

14 "(b) There are hereby authorized to be appropriated 

15 to the Secretary of Health, Education, and Welfare and to 

16 the Secretary of the Interior for any fiscal year such sums 

17 as may be necessary to carry out functions under this Act.". 

18 Sec. 3. (a) There are hereby transferred to and vested 

19 in the Secretary of Labor all functions of the Secretary of the 

20 Interior and of other offices and officers of the Department 

21 of the Interior under title I, title II, title III, and so much 

22 of title V as pertains to the field of coal mine health and 

23 safety (except for research with respect thereto), of the 

24 Federal Coal Mine Health and Safety Act of 1969 (as such 

25 Act was in effect immediately before the effective date of 



20-040 O - 78 - 



76 



75 

1 this section), except that all such functions of authorized 

2 representatives of the Secretary of the Interior are hereby 

3 transferred to and vested in authorized representatives of 

4 the Secretary of Labor. The Secretary shall carry out such 

5 functions and duties through the Assistant Secretary for Mine 

6 Safety and Health established by section 2 of this Act. 

7 (b) (1) All unexpended balances of appropriations, 

8 personnel, property, records, obligations, and commitments 

9 which are used primarily with respect to any function trans- 
it) f erred under the provisions of subsection (a) of this section 

11 to the Secretary of Labor shall be transferred to the Depart- 

12 ment of Labor. The transfer of personnel pursuant to this 

13 paragraph shall be without reduction in classification or com- 

14 pensation for one year after such transfer, except that the 

15 Secretary of Labor shall have full authority to assign person- 

16 nel during such one-year period in order to efficiently carry 

17 out functions transferred to him under this section. 

18 (2) All orders, decisions, determinations, rules, regula- 

19 tions, permits, contracts, certificates, licenses, and privileges 

20 (A) which have been issued, made, granted, or allowed to 

21 become effective in the exercise of functions which are trans- 

22 ferred under this section by any department or agency, any 

23 functions of which are transferred by this section, and (B) 

24 which are in effect at the time this section takes effect, shall 

25 continue in effect according to their terms until modified, 



77 



1 terminated, superseded, set aside, or repealed by the Sec- 

2 retary of Labor, by any court of competent jurisdiction, or 

3 by operation of law. 

4 (3) The provisions of this section shall not affect any 

5 proceedings pending at the time this section takes effect 

6 before any department or agency, functions of which are 

7 transferred by this section; except that such proceedings, 

8 to the extent that they relate to functions so transferred, shall 

9 be continued before the Secretary of Labor. Orders shall be 

10 issued in such proceedings, appeals shaii be taken therefrom, 

11 and payments shall be made pursuant to such orders, as if 

12 this section had not been enacted; and orders issued in any 

13 such proceedings shall continue in effect until modified, ter- 

14 minated, superseded, or repealed by the Secretary of Labor, 

15 by a court of competent jurisdiction, or by operation of law. 

16 (4) The provisions of this section shall not affect suits 

17 commenced prior to the date this section takes effect and in 

18 ail such suits proceedings shall be had, appeals taken, and 

19 judgments rendered, in the same manner and effect as if 

20 this section had not been enacted; except that if before the 

21 date on which this section takes effect, any department or 

22 agency (or officer thereof in his official capacity) is a party 

23 to a suit involving functions transferred to the Secretary of 

24 Labor, then such suit shall be continued by the Secretary 

25 of Labor. No cause of action, and no suit, action, or other 

26 proceeding, by or against any department or agency (or 



78 



77 

1 officer thereof in his official capacity) functions of which are 

2 transferred by this section, shall abate by reason of the 

3 enactment of this section. Causes of actions, suits, actions, 

4 or other proceedings may be asserted by or against the 

5 United States or the Secretary of Labor as may be appro- 

6 priate and, in any litigation pending when this section takes 

7 effect, the court may at any time, on its own motion or that 

8 of any party, enter an order which will give effect to the 

9 provisions of this paragraph. 

10 (c) For purposes of this section, (1) the term "func- 

11 tion" includes power and duty, and (2) the transfer of a 

12 function, under any provision of law, of an agency or the 

13 head of a department shall also be a transfer of all functions 

14 under such law which are exercised by any officer or officer 

15 of such agency or department. 

16 (d) Section 3(a) of the Federal Coal Mine Health and 

17 Safety Act of 1969 is amended by inserting immediately 

18 before the semicolon: ", except where the functions, powers, 

19 and duties vested in the Secretary of the Interior under this 

20 Act are transferred to and vested in the Secretary of Labor 

21 under section 3 of the Mine Safety and Health Act of 1977". 

22 SUNSHINE IN GOVERNMENT 

23 Sec. 4. (a) Each officer or employee of the Secretary 

24 of the Interior, Secretary of Labor, and the Secretary of 

25 Health, Education, and Welfare who — 



79 

78 

1 (1) performs any function or duty under this Act 

2 or the Federal Coal Mine Health and Safety Act of 

3 1969 and the Federal Metal and Nonmetallic Mine 

4 Safety Act which are amended by this Act; and 

5 (2) has any known financial interest (A) in any 

6 operator or mine subject to such Acts or (B) in any 

7 person who applies for or receives any grant, contract, 

8 or other form of financial assistance pursuant to such 

9 Acts; shall, beginning on February 1, 1978, annually 

10 file with the appropriate Secretary a written statement 

11 concerning all such interests held by such officer or em- 

12 ployee during the preceding calendar year. Such state- 

13 ment shall be available to the public. 

14 (b) The appropriate Secretary shall — 

15 (1) act within ninety days after the date of enact- 

16 ment of this Act— 

17 (A) to define the term "known financial in- 

18 terest ,, for purposes of subsection (a) of this section; 

19 and 

20 (B) to establish the methods by which the re- 

21 quirement to file written statements specified in 

22 subsection (a) of this section will be monitored and 

23 enforced, including appropriate provisions for the 

24 filing by such officers and employees of such state- 



80 

79 

1 ments and the review by the appropriate agency 

2 head of such statements. 

3 (2) report to the Congress on June 1 of each cal- 

4 endar year with respect to such disclosures and the ac- 

5 tion taken in regard thereto during the preceding cal- 

6 endar year. 

7 (c) In the rules prescribed in subsection (b) of this 

8 section, each Secretary may identify specific positions within 

9 each agency which are of a nonregulatory or nonpolicymak- 

10 ing nature and provide that officers or employees occupying 

11 such positions shall be exempt from the requirements of this 

12 section. 

13 (d) Any officer or employee who is subject to, and 

14 knowingly violates, this section, shall be fined not more than 

15 $2,500 or imprisoned not more than one year, or both. 

1G Sec. 5. Sections 2 and 3 of this Act shall take effect 

17 July 1, 1978, and all transfers of functions under the amend- 

18 ment made by section 2 and under section 3 shall be com- 

19 pleted not later than September 30, 1978. 

20 Sec. 6. Nothing contained in this Act or any amend- 

21 ment made by this Act shall be construed to reduce the 

22 number of inspectors engaged in enforcing the provisions of 

23 the Federal Coal Mine Health and Safety Act of 1969 (as 

24 such Act was in effect immediately before the effective date 

25 of section 3 of this Act) , and the Federal Metal and Non- 



81 



80 

1 metallic Mine Safety Act (as such Act was in effect immedi- 

2 ately before the effective date of section 2 of this Act) . or 

3 to reduce the number of inspectors engaged in the enforce- 

4 ment of the Occupational Safety and Health Act of 1970. 



82 

[From the Congressional Record — Senate, Feb. 11, 1977] 

(Pp. 2655-2667) 

******* 

Introduction of Bills and Joint Resolutions 

The following bills and joint resolutions were introduced, read the 
first time and, by unanimous consent, the second time, and referred as 
indicated. 

By Mr. Williams (for himself, Mr. Randolph, Mr. Javits, Mr. Abourezk, 
Mr. Anderson, Mr. Bayh. Mr. Brooke, Mr. Case, Mr. Church, Mr. Clark, 
Mr. Cranston, Mr. Eagleton. Mr. Ford. Mr Stevenson. Mr. Huddleston, 
Mr. Humphrey, Mr. Kennedy, Mr. Magmison, Mr. McGovern. Mr. Met- 
calf, Mr. Nelson, Mr. Pell. Mr. Riegle, Mr. Schweiker, Mr. Stafford, and 
Mr. Heinz) : 
S. 717. A bill to promote safety and health in the mining industry, to prevent 
recurring disasters in the mining industry, and for other purposes; to the Com- 
mittee on Human Resources. 

* * **** * 

[Introductory remarks by Senator Williams, and text of S. 717 
follow:] 

Statements on Introduced Bills and Joint Resolutions 

By Mr. Williams (for himself, Mr. Randolph, Mr. Javits, Mr. 

Abourezk, Mr. Anderson, Mr. Bayh, Mr. Brooke, Mr. Case. 

Mr. Church, Mi-, (lark. Mr. Cranston, Mr. Eagleton, Mr. 

Ford, Mr. Stevenson, Mr. Huddleston, Mr. Humphrey, Mr. 

Kennedy, Mr. Magnuson, Mi-. McGovern, Mr. Metcalf, Mr. 

Nelson, Mr. Pell, Mr. Riegle, Mr. Schweiker, Mr. Stafford, 

and Mr. Heinz) : 
S. 717. A bill to promote safety and health in the mining industry, 
to prevent recurring disasters in the mining industry, and for other 
purposes; to the Committee on Human Resources. 

FEDERAL MINK SAFETY AM) HEALTH AMENDMENTS OF 1977 

Mr. Williams. Mr. President. I am today introducing comprehen- 
sive, omnibus legislation which is designed to overhaul our Nation's 

mine safety and health program and establish a Federal mechanism 
which will effectively and efficiently assure safe and healthy work- 
places for our count ry's most important mining resource, the miners. 
The Human Resources Committee has been overseeing the metal and 
nonmetallic mine safety program for more than 10 years and the coal 
mine health and safety program for more than f> years. This oversight 
has included literally weeks of hearings, committee investigation of 
four major mining disasters, full scale investigations done at the com- 
mittee's behest by the General Accounting Office, and nearly daily 
contact between members of the committee and the committee staff 
on the one hand, and officials of the Interior Department on the other. 



83 

This oversight has led us inexorably to the conclusion that our Na- 
tion's mine safety and health program is seriously deficient. In some 
respects, the statutory authority is strong, but the implementation and 
enforcement is weak. On the whole, this situation has resulted in a 
dismal national effort to protect the lives and health of our Nation's 
miners. The mining and energy industry are the losers in this scheme, 
and our Nation as a whole is the loser in this scheme. 

It is clear that there has been great progress over the last decade 
in improving safety and health conditions in our mines, when com- 
pared to the situation that existed prior to the enactment of our current 
mine safety laws. But this progress has been far less than we would 
have expected, given the comprehensiveness of our laws and the vast 
expenditure of time and effort in improving these conditions. Indeed, 
in the past year, the rates of deaths and serious injuries were still 
appallingly high, and according to MESA figures, the number of 
serious injuries in our Nation's mines is again on the increase. 

Mining is a dangerous business, and no one pretends otherwise. 
In 1974, the last year for which we have comprehensive comparative 
data, about 1 out of every 1,500 mine workers was killed on the job or 
died from work related injuries or illnesses, compared with one in 
2,800 railroad workers, one in 4,000 construction workers, and one in 
12,400 workers in all industries covered by OSHA. On the average, 
one miner is killed and 66 miners suffer serious injury in our Nation's 
mines on every working day. 

In March of 1976, when the Labor and Public Welfare Committee 
was preparing for hearings on mine safety legislation, two gas ex- 
plosions rocked the Scotia Coal Mine in eastern Kentucky and took 
the lives of 2,3 miners and three Federal mine inspectors. On Septem- 
ber 31, 1976, while the mine safety and health bill was on the Senate's 
calendar, waiting for consideration by this body, an explosion in a 
coal mine in France took 16 lives. Only last month, on Thursday, 
December 30, 1976, a gas explosion occurred in a coal mine in Czecho- 
slovakia. As rescue efforts got underway there, it was feared that the 
45 miners trapped in that mine were dead. 

Mr. President, I do not think that we can sit by and wait for the 
next mining disaster to demonstrate to us the deficiencies in our mine 
safety and health program. It is my intention, Mr. President, to give 
mine safety and health legislation a high priority within the Labor 
and Public Welfare Committee. It is my fervent hope that this Con- 
gress can enact a mine safety law which will establish a truly meaning- 
ful and effective program and that we can do this before the next 
mining tragedy underscores the great need. 

Mr. President, the bill which I am introducing is designed to do 
just that. As I have said, it is a comprehensive mine safety and health 
bill, which draws from the best of our current programs and learns 
from the worst of our current experiences. It is a bill which, if enacted 
and meaningfully implemented by an administration truly committed 
to the cause of worker health and safety, should vastly reduce the 
number of fatalities and injuries in our mines and should make mining 



84 

disasters the great exception rather than the unnecessary fact of life 
for our Nation's miners and their long suffering families. 

Currently, the protection of the safety and health of our Nation's 
miners is provided by two separate statutes— the 1966 Metal and Non- 
Metallic Mine Safety Act and the 1969 Federal Coal Mine Health 
and Safety Act. Enforcement of both laws has been the responsibility 
of the Department of the Interior, but the enforcement of both statutes 
has been sorely lacking in effectiveness. The Metal and Non-Metallic 
Mine Safety Act is generally a weak law, lacking in real sanctions. 
The Coal Mine Health and Safety Act, on the other hand, is a more 
comprehensive and considerably stronger law. Althoufh there have 
been glaring deficiencies in the enforcement of the Coal Act, the law 
itself is a good and strong one which, if properly enforced, could 
result in real improvement in the health and safety of miners. For this 
reason, my bill repeals the Metal Act algether. and uses the stronger 
features of the Coal Act as the foundation for a new and comprehensive 
mine safety and health law which is applicable to the entire mining 
industry. In addition, this bill adopts the stronger features of the 
Occupational Safety and Health Act and incorporates them into a 
truly efficient mechanism for providing safe and healthful working 
conditions and efficient enforcement to the ultimate benefit of all 
miners. 

Mr. President, I believe this bill also provides protection for persons 
who may not be miners but who may be affected by mining activities, 
such as the victims of the terrible flood at Buffalo Creek in 1972. Clearly 
a comprehensive mine safety program must protect such people from 
hazards associated with mining. 

This bill, Mr. President, has three major features. It combines the 
health and safety programs for all of our Nation's mines into a single, 
uniform law. It transfers the responsibility for enforcement of that 
law from the Interior Department to the Lalx>r Department. And it 
vastly streamlines every aspect of the enforcement mechanism so that 
the system is truly responsive to the demonstrated safety and health 
deficiencies in our mines and the needs of our Nation's miners. 

Mr. President, this bill provides a uniform procedure by which new 
standards would bo promulgated and a uniform procedure by which 
the law would be enforced, but it does not contemplate that all stand- 
ards will apply uniformly to all types of mining. I fully recognize 
that, where there are fundamental differences in the nature of the ore 
or raw materials being extracted, the need to promulgate separate 
standards for one segment of the industry may be indicated. This bill, 
however, fully contemplates broad application of standards within a 
given segment of the industry and provides extensive variance pro- 
cedures for adjustment of standards based on the particular needs of a 
specific mine. 

The bill accommodates this need in a number of ways. It provides 
that existing mandatory standards promulgated under the Metal and 
Non-metallic Mine Safety Act, prior to enactment, are to be carried 
over as standards applicable to metal and nonmetallic mines, and 
standards under the Federal Coal Mine Health and Safety Act are to 
be carried over as standards applicable to coal mines after enactment. 
The bill also amends the Coal Mine Health and Safety Act to make 
applicable to all mines only those interim health standards of title II 



85 

of that act — such as dust from drilling rock, quartz dust, and noise — 
which clearly are applicable to noncoal as well as coal mining. 

The ultimate goal of this bill is to provide the maximum amount of 
protection for miners; in cases of doubt, both in enforcement and in 
standard making, miners should have the benefit of the broadest pos- 
sible interpretation and application. However, in promulgating stand- 
ards and in enforcing the law, the Secretary would be encouraged to 
maintain an essential awareness of the different nature of some seg- 
ments of the mining industry from other segments of the industry. 

On the other hand, it is clear that the mechanism for enforcement 
should be the same, irrespective of which standards apply and what 
type of mining operation is being inspected. Miners die in noncoal 
mines as surely as they die in coal mines. Miners suffer terrible and 
debilitating injuries in surface mines as regularly as they do in under- 
ground mines. If we are to have standards applicable to these mines, 
we must with regularity and frequency inspect all mines to make sure 
that these standards are being met. My bill provides for regular and 
frequent inspection at all mines. 

Where violations of the standards are found, our system should 
provide the same inducement for operator compliance, irrespective of 
the type of mines. My bill selects the civil penalty as the mechanism 
for encouraging operator compliance with safety and health stand- 
ards and mandates the imposition of such civil penalties for violations 
in all mines. 

This bill's mechanism for insuring the safety and health of miners 
has two approaches, however. Not only is there a civil penalty system 
by which the operators are to be encouraged to effect lasting compli- 
ance with the applicable standards, but the mine safety and health 
administration could also employ a broad range of closure orders 
which are intended to identify unusually hazardous conditions and 
insulate miners from these conditions until they are corrected. This 
closure order procedure is present in both of the current mine safety 
laws but is much more highly developed in the Coal Mine Act, and it 
is the procedure of that law which serves as the basis for the closure 
order procedure in my bill. 

The bill carries forward the imminent danger closure order from 
both existing mine safety acts and also contains authority to close 
mines for failure to abate violations, for technological inability to 
abate, and for unwarrantable failure to comply with the requirements 
of the act — all sanctions which currently exist in coal mine health and 
safety legislation. 

This bill also provides additional closure order authority not pres- 
ent in current law but which the committee's oversight suggests is 
clearly necessary to adequately protect miners. The bill provides au- 
thority to close a mine altogether, for periods of up to 1 month, where 
an operator's record of compliance with the act and its requirements 
is so egregious that it demonstrates gross negligence or willfulness. 
This civil penalty closure order is clearly intended to be reserved for 
the most serious of cases. By seeking this civil penalty, which can only 
be invoked by the independent Mine Safety and Health Keview Com- 
mission established by this bill, the administrators of the act are 
demonstrating to the recalcitrant operator that they will not tolerate 



86 

constant reluctance to comply with the act's requirements while 
miners remain exposed to serious risks. 

This is an extraordinary sanction, Mr. President, and it is reserved 
only for the most serious of situations. It is to be imposed by the Com- 
mission alone and only after an opportunity for a hearing has been 
afforded the operator. To impose this sanction, the Commission must 
find that the violations were willful or with gross negligence and that 
they constituted a serious threat to miners. 

This additional sanction is an important weapon in the Secretary's 
arsenal even though its contemplated use is rare. Past history has 
clearly demonstrated that the imposition of monetary penalties is 
simply insufficient to encourage some operators to comply with the act 
and its requirements. 

Another significant new remedy enables the Secretary to petition 
the Federal courts for an injunctive-tvpe remedy to close mines that 
have been in habitual and chronic violation. This sanction recognizes 
that an operator who compiles a record of chronic violation, even 
minor ones, demonstrates that he has little respect for the require- 
ments of the law and the safety and health of his miners. This sanc- 
tion, judiciously used, is intended to encourage operator compliance 
with the spirit as well as the letter of the law. 

The committee's investigation of the Scotia mine disasters last year 
clearly demonstrated the need for such a remedy. What the committee 
found at that mine was a pattern of violations, which were generally 
promptly abated when discovered by inspectors. But the fact that 
similar violations would recur, time after time, clearly suggested that 
the operator found it easier and perhaps cheaper to continue to operate 
the mine in violation of the law and correct deficiencies only when dis- 
covered. Where such a pattern has been developed, the mine is, more 
probably than not, routinely being operated in violation of the law 
when inspectors are not there to cite violations. Such operation un- 
necessarily exposes miners to dangers which the act did not expect 
them to have to confront. This is a "pattern and practice" of violations 
which the agency administering the mine safety laws should take 
cognizance of and which the courts should be able to remedy. My bill 
requires the agency to take cognizance of such violation patterns, and 
provide the means by which the courts can fashion a remedy which is 
appropriate to secure the health and safety of miners. 

The second major feature of my bill is the transfer of all mine safety 
and health enforcement responsibilities from the Department of the 
Interior to the Department of Labor. I feel that the transfer of these 
responsibilities to the Labor Department is absolutely essential if this 
Nation is to have a meaningful and effective mine safety and health 
program. Our current program has suffered terribly at the Interior 
Department. That Department has a basic conflict of missions. On the 
one hand, it is charged with the duty of maximizing the exploitation 
of our Nation's mineral and energy reserves. On the other hand, it 
is charged with the duty of protecting the welfare of the employees 
engaged in the extraction of these resources. These duties often con- 
flict, and we should not be putting the health and safety of workers 
in a posture where any administrative agency should have to think 
twice before it acts to secure the protection of workers. Such a conflict 
would not be present at the Labor Department. The Labor Depart- 



87 

ment is charged with the responsibility of protecting our Nation's 
workers, and the administration of the mine safety and health laws 
by that department would be free of any conflict which is apt to jeo- 
pardize the welfare of miners. 

Still, we must recognize that the safety and health of miners is a 
field with its own highly developed technology and specific problems. 
My bill insures that the Mine Safety and Health Administration will 
maintain its separate and distinct identity within the Labor Depart- 
ment. The administration and enforcement of the law will be assigned 
to a separate Mine Safety and Health Administration which will be 
headed by a separate Assistant Secretary. An administrative review 
commission, separate from the OSHA Commission, is established to 
review enforcement and mine discrimination cases. The bill provides 
for complete separation of the mine safety and health and the occupa- 
tional safety and health programs within the Department of Labor. 

The effect of this is, in my view, the best of both worlds. The Mine 
Safety and Health Administration is permitted to maintain its own 
identitv and its not inconsiderable expertise and technological knowl- 
edge. Yet, its overall administration and guidance will come from the 
Secretary of Labor, whose responsibilities are to secure the rights of 
workers, not maximum mineral production, and who will not be placed 
in the position of having to select between alternative and often 
mutually exclusive responsibilities. 

Finally, Mr. President, my bill vastly streamlines nearly every as- 
pect of the enforcement and administration of the mine safety and 
health program. The committee's long years of overseeing the current 
programs has led it to understand the weaknesses which are inherent in 
nearly every phase of the current administration of the mine safety 
laws. This bill addresses these weaknesses and proposes an overall 
enforcement system which should be efficient, flexible, and able to 
effectively respond to demonstrated problems in our mines. 

The keystone of any enforcement scheme is the promulgation of 
standards, and this process, under the current laws, has been a pain- 
fully slow and difficult one, often marked by excessive and unconscion- 
able delays. After 91 miners died of carbon monoxide poisoning in a 
mine fire in the Sunshine Silver mine in Idaho in early 1972, it took 
22 months before a standard requiring that miners be provided self- 
rescuers was promulgated under the Metal and Non-Metallic Mine 
Safety Act. Forty-five months after the collapse of an impoundment 
dam at Buffalo Creek, W. Va., a standard dealing with such dams was 
finally promulgated under the Coal Mine Health and Safety Act, 
Despite the need for standards dealing with safety training for miners, 
demonstrated by the 1972 disaster at Sunshine and Blacksville, W. Va., 
the Interior Department did not propose such a standard until after 
the Labor Subcommittee's hearings on Scotia in early 1976, which 
demonstrated that miners at that ill-fated mine were still not receiving 
even rudimentary training in the use of the self-rescuer device and 
were being routinely sent below ground without even the most ele- 
mentary awareness of the very serious hazards associated with their 
occupation. The Interior Department's hearings on these long awaited 
safety training regulations were scheduled to be started only this 
month. 



88 

My bill eliminates these inordinate delays in the promulgation of 
much needed health and safety standards. The sole authority for 
promulgating standards under my bill rests with the Secretary of 
Labor, and the bill grants him a broad discretion in determining 
whether standards are needed and whether they should be promul- 
gated. Once the Secretary decides that a standard should be issued 
and starts the promulgation procedure, however, each and every step 
of that procedure comes under a tight "timetable." This procedure 
gives the Secretary the option of referring the proposal to an advisory 
committee, which may be especially constituted for the purpose, before 
the proposal is submitted to the public for general comment. The 
process provides for the efficient consideration of the views of affected 
workers, industry groups, and public organizations, but is designed to 
keep the procedure running to a natural and timely conclusion. 

The bill also makes provision for standards to deal with extraor- 
dinary circumstances. The bill authorizes the Secretary to issue emer- 
gency temporary standards in situations of grave danger to employees, 
without first going through statutory rule-making procedures. This 
provision, which IS taken from the Occupational Safety and Health 
Act, is designed to allow the Secretary to react quickly to grave dan- 
gers which threaten employees before those dangers manifest them- 
selves in serious or fatal injuries or illnesses. 

The bill also permits the Secretary to grant variances from stand- 
ards in situations which will insure the protection of miners. These 
variances are possible where an operator is unable to immediately com- 
ply with a requirement for technological reasons, where a research 
project in connection with safety or health matters is being conducted 
by the operator, or where an operator can demonstrate that he can 
provide an equal degree of protection to miners while using a different 
method. 

After standards are in place, they must be enforced, and my bill 
provides for a vastly increased Federal presence in the mines to insure 
that operators are continually meeting their obligations under the 
Mine Safety and Health Act. Under this bill, a minimum of four in- 
spections per year is required of all mines, and additional inspections 
are mandated for particularly hazardous mining operations. 

Inspections, under my bill, are intended to insure operator compli- 
ance with the requirements of the act, and the bill makes mandatory 
the imposition of an appropriate civil penalty in each case of violation 
of the act or standard. This concept is not a new one. Indeed, manda- 
tory civil penalties have been a feature of the enforcement of the Coal 
Mine Health and Safety Act since 1970, and many of the improve- 
ments in mine safety and health which have been noted under that act 
can be attributed to this scheme of mandatory penalties. 

Despite this, certain weaknesses in the administration of the civil 
penalty system under the Coal Act have manifested themselves, and 
my bill attempts to correct these weaknesses. To truly encourage com- 
pliance with the act's requirements, a civil penalty must be assessed 
and collected reasonably promptly. The current administration of the 
Coal Act civil penalty program does not do this. In overseeing: the en- 
forcement of the Coal Act, the committee has found that civil penalty 
assessments are generally too low, and there are long delays between 



89 

the citation of the violation and the assessment of the penalties. A 
further complicating factor is the extraordinary difficulty that the 
Mining Enforcement and Safety Administration has had in collecting 
these penalties. The need to secure payment by court order, often after 
a new trial on the facts following a full-blown administrative determi- 
nation, has left literally millions of dollars of civil penalty assessments 
uncollected. Other penalties are compromised at pennies on the dollar. 
This reduction of the penalties combined with the long delays between 
violation, assessment, and collection has seriously weakened the effec- 
tiveness of the civil penalty as an inducement to meaningful compli- 
ance with the requirements of the law. 

My bill will correct this. The procedure for assessment of penalties 
is vastly simplified, and the number of criteria upon which the penalty- 
is to be based is reduced. The procedure for determining operator re- 
sponsibility and liability is assigned to a truly independent Mine 
Safety and Health Review Commission, and the process is streamlined 
so that operators are provided with a fair method of contesting liabil- 
ity, but are not encouraged to delay factfinding and the administrative 
process or to seek duplicative factfinding in other forums. Uncontested 
citations and assessments under this bill become final orders of the 
Commission and are entitled to pro forma enforcement in the Federal 
courts in routine collection actions. Contested citations and assessments 
move along through the system with efficiency and the final orders of 
the Commission are dispositive of the facts involved and subject to 
enforcement or review in the Federal circuit courts of appeals without 
the need for additional and duplicative factfindings. The independent 
Review Commission also has authority to review the propriety of clo- 
sure orders, and the same standards of review and enforcement prevail. 

The intention of this scheme is to provide a fair and prompt admin- 
istrative determination of the liabilities of the parties, in order to most 
efficiently turn the enforcement mechanism of the act into an effective 
inducement to continued and meaningful operator compliance with 
their responsibilities to their workers. 

Mr. President, as the 94th Congress came to a close, a mine safety 
bill had been passed by the House of Representatives and a similar 
bill had been reported favorably to the Senate by the Labor and Public 
Welfare Committee. Unfortunatley, the rush of last minute demands 
on the Senate made it impossible for this body to consider the legisla- 
tion. At that time, I noted that the conditions in our Nation's mines 
warranted this legislation, and I said : 

We cannot in good conscience let these conditions go on any longer. When we 
return in January, it is my fervent hope that we can make a mine safety and 
health bill . . . one of our first orders of business and that we will once and for 
all provide effective and meaningful safety and health for our nation's miners 
and eradicate unnecessary death and suffering from our nation's mines. 

Mr. President, the need is still with us, and the need is still great. 
The bill which I have introduced today is broad in scope and is the 
product of years of experience which I and the Labor and Public Wel- 
fare Committee have had in overseeing the deficiencies of our current, 
ineffective program. 

Our new President has indicated that he desires an overall and 
comprehensive energy policy. That policy is going to include the 



90 

efficient exploitation of our mineral resources; and if our Nation is 
to set upon this course, we must do so in a manner which will reassure 
our miners that we have their safety and health uppermost in our 
minds. Otherwise, there will be nothing to encourage young people 
to go into an admittedly hazardous occupation, and there will be 
nothing to encourage existing miners to continue in this hazardous 
line of work. 

The time has come, the time has long since come, when these reforms 
should be made. 

This legislation will promote a fair and efficient national mine safety 
and health program. When this legislation is enacted and becomes 
law, our Nation's miners will have won a significant victory, and our 
Nation will be greater for its commitment to the welfare of its miners. 

Mr. President, I ask unanimous consent that a section-by-section 
analysis of the bill be printed in the Record. 

There being no objection, the section-by-section analysis was ordered 
to be printed in the Record, as follows : 

Section-by-Section Analysis 

TITLE I— AMENDMENTS TO THE GENERAL PROVISIONS OF THE 
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 

Section 101 — This section amends section 1 of the Federal Coal Mine Health 
and Safety Act of 1969 such that it is now cited as the "Federal Mine Safety 
and Health Act of 1977." 

Section 102 — Definitions and applicability. 

Section 102(a)(1) — provides that Section 2 of the Federal Mine Safety and 
Health Act of 1976 is amended by striking out "coal" wherever it appears. 

Section 102(a) (1) — provides that the functions of the Secretary of the Interior 
in developing and promulgating improved mandatory health and safety standards 
under Section 2(g) (1) are transferred to the Secretary of Labor. 

Section 102(b) (1) — changes the definition of "Secretary" in section 3(a) from 
Secretary of the Interior to Secretary of Labor. 

Section 102(b) (2) clarifies the defintion of "operator" to include independent 
contractors performing services or construction at a mine. 

Section 102(b) (3) — enlarges the definition of "mine" in section 3(h) to include 
those mines previously covered by the Federal Metal and Non-Metallic Mine 
Safety Act. This definition is also expanded to include facilities for the prepara- 
tion of coal, except that the Secretary is to give due consideration to the con- 
venience of giving one Assistant Secretary all authority with respect to health 
and safety of miners employed at one physical establishment. 

Section 102(b) (4) — expands the definitions of "operator," "agent," "miner," 
and "imminent danger" in sections 3 (d), (e), (g), and (j), respectively, to 
apply to all mines now covered by the Act. 

Section 102(b)(5) — amends section 3 to add a new section 3(n) defining 
"Administration" which means the Mine Safety and Health Administration 
established under section 302 of this Act and a new section 3(o) defining "Com- 
mission" which means the Federal Mine Safety and Health Review Commission 
which is established in the Act. 

Section 102(c) — amends section 4, "Mines Subject to Act," to include in addi- 
tion to coal mines, mines newly covered by this Act. 

Section 102(d) (1) — amends Section 5(c) to conform the wording thereof to 
the new definition of "Secretary," but the meaning is unchanged. 

Section 102(d) (2) — includes operators and miners' representatives of mines 
newly covered by this Act among those that may ask the Interim Compliance 
Panel for a public hearing under Section 5(f), and changes the wording of that 
section to conform to the new section number for "Judicial Review." 



91 

TITLE II— MINE SAFETY AND HEALTH STANDARD AMENDMENTS 

Amendment to title I 

Section 202— This section amends Title I of 1969 so that it includes : 
Section 101 — Duties 

Section 101(a) — establishes the duty of each mine operator to comply with 
the health and safety standards, all rules, regulations, and orders promulgated 
under this Act and to furnish a place of employment free from recognized haz- 
ards causing or likely to cause death or physical harm. 

Section 101(b) — establishes the duty of each miner to comply with the health 
and safety standards, all rules, regulations, and orders promulgated under this 
Act which are applicable to his own conduct. 

Section 102 — Safety and Health Standards 

Section 101(a) — establishes that the Secretary may promulgate, modify or 
revoke any health or safety standard by rule in accordance with the provisions of 
Section 553 of Title 5 of the United States Code (without regard to any refer- 
ence therein to Sections 556 and 557 of such title) and the following provisions. 

Section 102(a) (1) — provides that the Secretary may request the recommenda- 
tions of an advisory committee appointed under section 103 whenever he deter- 
mines from information submitted to him in writing or on the basis of his own 
information that a rule should be promulgated, except that when the recom- 
mendation comes from the National Institute for Occupational Safety and 
Health, the Secretary must within sixty days after receipt thereof either com- 
mence rule making or publish in the Federal Register his decision not to do so. 

Where an advisory committee is appointed, the Secretary must provide such 
committee with any proposal of his own or of the Secretary of Health, Educa- 
tion, and Welfare as well as any factual information that has been developed. 
The advisory committee must submit to the Secretary its recommendations 
within 90 days from the date of its appointment or a longer or shorter period 
of time prescribed by the Secretary, but no longer than 180 days after the 
appointment. 

Section 102(a) (2) — requires the Secretary to publish a proposed rule in the 
Federal Register and afford interested persons a period of 30 days after publica- 
tion to submit written comments. Where an advisory committee is appointed the 
Secretary must publish the proposed rule within 60 days after submission of the 
committee's recommendations or the expiration of the period prescribed by the 
Secretary for those recommendations, if he decides to publish such recommenda- 
tions, and if he decides not to publish such recommendations, he shall publish 
the reason for his determination not to. 

Section 102(a) (3) — permits any interested person to file with the Secretary 
written objections to the proposed rule and request a public hearing before the 
expiration of the comment period provided for in section 102(a) (2). Within 30 
days after the last day for filing such objections, the Secretary shall publish 
in the Federal Register a notice specifying the standard objected to and the 
time and place for a hearing. 

Any such hearing shall be held promptly, shall be informal in nature, and 
shall be conducted in accordance with procedural rules or rulings which the 
Secretary shall make in order to avoid unnecessary costs or delay. A verbatim 
transcript of all such hearings shall be made, and available to the public. 

Section 102(a) (4)— provides that within 60 days after expiration of the 
comment period under section 102(a) (2) or within 60 days after completion 
of a hearing under section 102(a) (3), the Secretary shall issue a rule or deter- 
mine that a rule should not be issued. In order to insure that affected employers 
and their employees are informed of the existence of the standard and its 
requirements, an issued rule may contain a provision delaying its effective date 
for a period determined by the Secretary, but not longer than 90 days. 

Section 102(a) (5) (A)— requires the Secretary, in promulgating standards, to 
set the standard which most adequately assures on the basis of the best avail- 
able evidence that miners will not suffer impairment of health or functional 
capacity, even if regularly exposed to the hazards throughout their working 
lives. Development of standards is to be based on research, demonstration, ex- 






20-040 O - 78 



92 

periinent, and other appropriate information. In addition to the attainment of 
the highest degree of safety and health protection for the miner, other con- 
siderations shall be the latest available scientific data in the field, the feasi- 
bility of the standards and experience gained under this and other health and 
safety statutes. Wherever practicable, the standard should be expressed in 
terms of objective criteria and performance desired. 

tion 102(a)(5)(B)— requires the Secretary of Health, Education, and 
Welfare to identify toxic materials or harmful physical agents found In mines 
and to within three years after enactment of these Amendments, and on a con- 
tinuing basis thereafter, determine whether those substances or agents pose a 
threat to miners in the concentrations in which they are normally found in a 
mine. Such determinations, together with appropriate criteria, are to be trans- 
mitted to the Secretary, who shall Within sixty days after receipt tbereof, for 
all agents or substances not already covered by an appropriate Standard, either 
commence forma] standard promulgation procedures under Section 102(a)(1) 
or 102(a) (2), or shall publish his determination not to do so. 

Section 102(a) (6) — provides that any standard promulgated under section 
102(a) must prescribe the use of labels or other warnings necessary to ensure 
that, miners are apprised of all hazards to which I hey are exposed, relevant 
symptoms and appropriate emergency treatment and proper conditions and 
precautions of safe use or cxi>osure. A standard, when appropriate, shall pre- 
scribe protective equipment, control or technological procedures to be used, and 
shall provide for monitoring or measuring miners' exposure as may be necessary 
for the protection of the miners. Where appropriate, such standard shall pre- 
scribe the type ami frequency of medical examination or tests which the <>j>erator 
shall provide, at his cost, in order to determine whether the miner exposed to 
such hazards is adversely affected by such exposure. Such standards shall pro- 
vide that where a determination is made that a miner may suffer material Im- 
pairment of health or functional capacity as a result of exposure to a hazard 
covered by the standard, miners shall be removed from such exposure and 
reassigned. Any miner transferred due to such exposure shall receive compensa- 
tion at not less than the rate for miners in the classification he held immediately 

prior to his transfer. 

The medical examination may be furnished at the expense of the Secretary of 

Health. Education, and Welfare if he determines them to be in the nature of 

cb. The results of SUCh examination or tests shall be furnished only to the 

Secretary, the Secretary of Health, Education, and Welfare, and at the miners 

request, t<> his designated physician. 

Section 102(a) (7) — requires that in promulgating or revoking standards or in 
publishing any rule under Title 1 the Secretary shall not reduce the protection 
afforded miners belOW that of any standard previously in effect. 

Section 102(b) (1) — provides that where the Secretary determines that miners 
aro exposed to grave danger from exposure t«» substances or agents determined 
to be toxic or physically harmful and that an emergency standard is necessary 
to protect the miners, he may promulgate an emergency standard effective upon 
publication in the Federal Register without regard to the rulemaking procedures 
of the Administrative Procedure Act. 

Section 102(b) (2) — provides that an emergency temporary standard shall be 
effective until superseded by a standard promulgated in accordance with the 
procedures prescribed in section 102(b)(3). 

Section 102(b) (3) — requires the Secretary to begin a proceeding for promul- 
gating a standard in accordance with section 102(a) upon publication of the emer- 
gency temporary standard. The emergency temporary standard shall serve as the 
proposed rule in such a proceeding and the Secretary shall promulgate the per- 
manent standard no later than nine months after publication of the emergency 
temporary standard. 

Section 102(c) — authorizes the Secretary to grant a variance if he determines 
or the Secretary of Health, Eductaion, and Welfare certifies that such a variance 
is necessary for the operator to participate in an experiment approved by one 
of the Secretaries designed to improve techniques of safeguarding the health or 
safety of the workers. Variances under this subsection shall not be granted until 
the Secretary determines that such a variance will not adversely affect the 
health and safety of the miners and such miners are notified and by publication 
in the Federal Register. 

Section 102(d) (1) — provides that any operator may apply to the Secretary for 
a temporary order permitting limited noncompliance with a standard or any of 
its provisions promulgated under section 102. Such a temporary order shall be 



93 

granted only if the operator's application meets the requirements of paragraph 
(2) and establishes that (A) he is truly unable to come into compliance with 
the standard by its effective date, (B) he will guarantee that miners are afforded 
no less than the same measure of protection they would have been provided by 
such standard, and (C) he has an effective program for coming into compliance 
with the standard as quickly as practicable. Any temporary order issued under 
the above subsection must prescribe the practices the operator must use while 
the order is in effect and describe his program for coming into compliance with 
the standard. A temporary order may be granted only after notice to miners and 
an opportunity for a public hearing but the Secretary may issue one interim order 
to be effective until a decision is made on the basis of the hearing or for sixty 
days, whichever is less. A temporary order may be in effect only long enough for 
an employer to achieve compliance with the standard or 6 months, whichever is 
shorter, except that the time which an interim order is in effect shall be sub- 
tracted from the time any temporary order is in effect. Such an order may be 
renewed not more than twice if (i) the requirements of this subsection are met 
and (ii) an application for renewal is filed at least 90 days prior to the expira- 
tion date of the order. No interim renewal of an order may remain in effect longer 
than 180 days. 

Section 102(d)(2) — requires that an application for a temporary order 
contain : 

(A) a specification of the standard or portion thereof from which the em- 
ployer seeks a noncompliance order. 

(B) a representation by the operator, supported by qualified persons, that 
he is unable to comply with the standard or portion thereof and the detailed 
reasons for such inability to comply. 

(C) a statement of steps he has taken and will take to protect employees 
against the hazard covered by the standard. 

(D) a statement of when he expects to be able to comply with the stand- 
ards, and what steps he has taken and will take to comply with the standard, 
and 

(E) a certification that he has informed his employees of the application 
and their right to petition the Secretary for a hearing ; a description of how 
miners have been informed shall be contained in the certification. 

Section 102(c) — allows operators to apply to the Secretary for a variance from 
a standard promulgated under Section 102. Affected miners and their representa- 
tive must be given notice of each such application and an opportunity to partici- 
pate in a hearing. The Secretary shall issue a variance if he determines on the 
record, after opportunity for an inspection where appropriate and a public hear- 
ing that the operator will provide conditions as safe and healthful as those which 
would prevail if he complied with the standard. The order of variance shall pre- 
scribe the conditions the operator must maintain and the practices he must use 
to the extent they differ from the standard. Such an order may be modified or 
revoked upon application by an operator, miners, miners' representative, or by 
the Secretary in the manner prescribed for its issuance. 

Section 102(f) provides that subsections (d) and (e) shall not apply with 
respect to any coal health standard in effect on the effective date of the Federal 
Mine Safety and Health Amendments Act of 1977. 

Section 102(g) allows persons adversely affected by a standard to challenge 
its validity, within 60 days of its promulgation in the appropriate U.S. court of 
appeals. Unless ordered by the court, such challenge shall not operate as a stay 
of the standard. 

Only objections which are raised during the administrative proceedings shall 
bo considered by the court in reviewing such standards, unless failure to have 
raised such objections earlier shall be excused by the court due to extraordinary 
circumstances. The procedures of this Section shall be the exclusive means of 
challenging the validity of the standards. 

Section 103 — Advisory Committees 

Section 103(a) — allows the Secretary to appoint advisory committees to assist 
him in his standard setting functions under section 201(a) and advise him on 
other health and safety matters. Each committee may include one or more de- 
signees of the Secretary of Health, Education, and Welfare, the National Bureau 
of Standards, Department of Commerce, and the National Science Foundation, 
operator and miner representatives in equal numbers, one or more representatives 
of state mine inspection or safety agencies. It may include other members quali- 
fied by knowledge and experience who shall not exceed in number the members 



94 

from Federal and State agencies. Committee meetings must be open to the public 
and the record thereof must be made available to the public. No committee mem- 
ber, except representatives of the operator and miners, shall have an economic 
interest in any proposed rule. 

Section 103(b) — provides for the compensation for committee members from 
private life according to the provisions for section 3109 of title 5, United States 
Code for consultants or experts. The Secretary shall pay to the States the actual 
costs to them of their representatives' membership on the Committee. 

Section 104 — Inspections, Investigations, and Recordkeeping 

Section 104(a) — authorizes the Secretary or the Secretary of HEW or the 
authorized representative of either, upon presenting appropriate credentials 
to the owner, operator, or agent in charge, (1) to enter without delay any 
mine subject to the Act and (2) to make inspections and investigations and to 
consult privately with employers, owners, operators, agents, or miners. With 
respect to all mines, the Secretary is required to make inspections of the entire 
mine at least four times a year. No advance notice of inspections shall be given, 
except that the Secretary of Health, Education, and Welfare may give advance 
notice of inspections conducted in connection with research or technical assist- 
ance. 

Section 104(b) — allows the Secretary to require the attendance and testimony 
of witnesses and the production of evidence under oath in connection with 
investigations of accidents and other occurrences. Witnesses will be paid the same 
as witnesses in U.S. courts. The appropriate district courts, upon application 
by the Secretary shall have jurisdiction over witnesses failing to appear and 
may issue orders requiring such appearance. Failure to obey such an order 
may be punished as contempt. 

Section 104(c)(1) — requires each operator to maintain and make available 
to the Secretaries such records that the Secretary, in cooperation with the Sec- 
retary of Health, Education, and Welfare, prescribes as appropriate for the 
enforcement of the Act or for developing information regarding the causes 
and prevention of occupational accidents and illnesses in the mines. Regula- 
tions issued pursuant to this paragraph may include provisions requiring opera- 
tors to conduct periodic inspections. 

Section 104(c)(2) — provides that the Secretary, in cooperation with the 
Secretary of Health, Education, and Welfare, shall require operators to main- 
tain records of and make periodic reports on work-related deaths, injuries, and 
illness except for minor injuries requiring only first aid treatment. 

Section 104(c) (3) — requires the Secretary, in cooperation with the Secretary 
of Health, Education, and Welfare, to issue regulations requiring operators 
to maintain records of miner exposures to potentially toxic or harmful physical 
agents that must be monitored or measured under the Act's health and safety 
standards. The regulations are to be given miners or their representatives an 
opportunity to observe the monitoring or measuring and to give miners and 
former miners access to such records of individual exposure. Operators are 
to notify miners of overexposure and shall inform overexposed miners of the 
corrective action being taken. 

Section 104(c) (4) — provides that all accidents, except some unintentional roof 
falls, shall be investigated by the operator or his agent to determine the 
cause and means of preventing recurrence. Records of accidents and investigations 
shall be maintained and made available to the Secretary and the appropriate 
State agency. Such records shall be open for inspection by interested persons. 

Section 104(d) — requires that information obtained under the Act must be 
obtained with a minimum burden upon operators, especially those operating small 
businesses. Unnecessary duplication of efforts in obtaining information is to be 
reduced as much as possible. 

Section 104(e) — provides that subject to regulations issued by the Secretary 
a representative of the operators and a representative of the miners shall be 
given an opportunity to accompany the inspecting official during the inspection 
of a mine under section 104(a). Where there is no authorized miner represent- 
ative the inspector shall consult with a reasonable number of miners. If he 
determines more than one representative from each party would aid the in- 
spection, the inspector may permit each party an equal number of additional 
representatives. A miner representative who is also employed by the operator 
shall not lose pay for his participation in the inspection, but only one such 
miner shall be authorized to be paid pursuant to this subsection. Compliance 



95 

with this subsection shall not be a jurisdictional prerequisite to the enforcement 
of any provision of this Act. 

Section 104(f) (1) — provides that if any miner or his representative believes 
that a standard violation exists that threatens physical harm or that an im- 
minent danger exists, he may request an inspection by giving written notice with 
his signature to the Secretary or his authorized representative of such violation 
or danger. A copy of such notice shall be provided to the employer or his agent 
no later than at the time of inspection but, upon request, the name of the person 
giving such notice and the names of the miners referred to therein shall be 
deleted. 

If the Secretary determines there are reasonable grounds to believe that a 
violation or danger exists, he shall make a special inspection as soon as practi- 
cable. If the Secretary determines there are no reasonable grounds to believe that 
a violation or danger exists, he shall so notify in writing the miners or their 
representative. 

Section 104(f) (2) — provides that prior to or during any inspection any miners 
or their representatives may notify the federal inspector, in writing, of any 
violation of this Act or of any imminent danger they believe exists. The Secretary 
shall by regulation, establish informal review procedures for any refusal by 
an inspector to issue a citation with respect to such danger and shall furnish 
the miners or their representative requesting such review a written statement 
of the reasons for his final disposition of the case. 

Section 104(g) (1) — authorizes the Secretary and the Secretary of Health, 
Education, and Welfare to publish information obtained under this section. 

Section 104(g) (2) — provides that the Secretary and the Secretary of Health, 
Education, and Welfare shall each prescribe regulations necessary to carry out 
their responsibilities under this Act. 

Section 104(h) — requires the Secretary to provide a minimum of one spot 
inspection of all or part of a mine during every 5 working days at irregular 
intervals, if the mine contains some especially hazardous conditions and provides 
specifically for inspection once each five days of mines liberating 1,000,000 cubic 
feet of explosive gas each day ; once each ten days of mines liberating 500,000 
cubic feet of such gases; and one each 15 days of mines liberating 200,000 
cubic feet of such gases. 

Section 104 (i) — provides that if there is a mine accident, the operator shall 
notify the Secretary and preserve any evidence that would aid an investigation 
of the cause. The Secretary may supervise rescue and recovery activity in such 
mine, if such activity is necessary, and take other appropriate action to preserve 
life. 

Section 104 (j) — provides that if there is a mine accident, and the Secretary's 
representative is present, he may issue appropriate orders to insure the safety 
of persons in the mine, and the operator must obtain his approval, in consulta- 
tion with appropriate State representatives, when feasible, of any recovery 
plan or of any plan to return affected areas to normal operation. 

Section 105 — Citations and Orders 

Section 105(a)(1) — provides that if, upon inspection or investigation, the 
Secretary or his representative believes an operator has violated this Act or any 
standard, rule, order or regulation promulgated pursuant to this Act, he shall with 
reasonable promptness issue a citation to the operator. The citation shall be 
written, describe with particularity the nature of the violation, and fix a reason- 
able time for the violation's abatement. 

Section 105(a) (2) — provides that, if a citation is issued under paragraph 
(1) for a violation the Secretary believes was committed willfully or with gross 
negligence and which subjected miners to an imminent danger, the citation shall 
include such charge with a specific description of the danger involved. 

Section 105(b) — provides that, if upon any follow-up inspection, the Secretary's 
representative finds (1) the cited violations have not been totally abated within 
the original or subsequently extended abatement period, and (2) the abatement 
period should not be further extended, he shall find the area affected by the viola- 
tion and promptly issue an order requiring the operator to withdraw from the 
affected area all persons (until the Secretary's representative determines the 
violation has been abated) , except the following : 

(1) Any person whose presence is necessary to eliminate the danger, in 
the judgment of the operator or the Secretary's representative ; 

(2) Any public official whose official duties require his presence; or 



96 

(3) Any legal or technical consultant or representative, qualified to make 
mine examinations or accompanied by such a person, and whose presence 
is necessary for the proper investigation of the conditions described in the 
order, in the judgment of the operator or the Secretary's representative. 

Section 105(c) (1) — provides that, if an inspector finds a standard violation 
that could significantly contribute to the cause and effect of a mine health or 
safety hazard and which is caused by an unwarranted failure of the operator to 
comply with such standard, he shall issue an order withdrawing all persons, 
except those referred to in section 105(b) from the affected area until the Secre- 
tary's representative determines that the violation has been abated. 

Section 105(c) (2) — provides that, if a withdrawal order has been issued pur- 
suant to section 105(c) (1), a withdrawal order shall be issued by the Secretary's 
representative who finds other unwarranted violations. The order shall be effec- 
tive until an inspection discloses no similar violations. Following such an inspec- 
tion, the provisions of section 105(c) (1) shall again be applicable to the affected 
mine. 

Section 105(d) — requires that during the abatement period for a violation of 
the respiratory dust concentration limit, the operation must take samples de- 
scribed in section 202(a) during each production shift. The section also provides 
that, after a withdrawal order has been issued for failure to abate a violation of 
the respirable dust concentration limit, the Secretary, upon request of the opera- 
tor, shall provide technical assistance to aid in reducing such dust concentrations. 
Those persons sent by the Secretary may require the operator to take actions 
they deem appropriate to insure the health of persons in the mine. 

Section 105(e)(1) — provides that if the Secretary's representative, while on 
an inspection, finds a miner employed in a mine who has not received requisite 
safety training in accordance with a safety training plan approved by the Secre- 
tary in accorda/nce with the provisions of section 116 of the Federal Mine Safety 
and Health Act of 1976, such a miner is to be declared a hazard to himself and 
others, and such miner is required to be immediately withdrawn from the mine 
until the Secretary can determine that such miner has received the requisite 
training. 

Section 105(e) (2) — provides that miners ordered withdrawn from a mine as 
a result of not having received such training shall not be discriminated against 
for such reason, and shall suffer no loss of pay during the period until the Secre- 
tary finds that such training has been given to the miner. 

Section 105(f) — requires that each citation or order or copy thereof issued 
under this section must be posted in accordance with section 110 and as pre- 
scribed by the Secretary's regulations. 

Section 105(g) — provides that no citation may be issued under this section 
after 6 months following any violation. 

Section 105(h) — provides that any order issued under section 105 (b) or (c) 
is effective until revoked by the Secretary or modified or vacated by the Commis- 
sion or the courts pursuant to sections 106 ( c ) or 107 ( a ) . 

Section 106 — Procedures for Enforcement 

Section 106(a) — requires the Secretary to notify within a reasonable time an 
operator issued a citation or order under section 105(a) (1) of any penalty to 
be assessed under section 111(a) and that the operator has 15 workimg days to 
notify the Secretary that he wishes to contest the citation or proposed penalty. 
If the citation contains a charge under section 105(a) (2), the Secretary's notifi- 
cation shall include a proposed civil penalty closure order under section 111(c) 
in addition to the proposed civil monetary penalty. 

If the operator fails to notify the Secretary within the 15 working days that 
he intends to contest the citation or proposed penalty or penalties and if no 
notice is filed by any miner or miner representative under subsection (c) within 
such time, the citation and penalty or penalties as proposed shall be deemed a 
final order of the Commission and not subject to review by any court or agency. 

Section 106(b) — provides that, if the Secretary believes an employer has 
failed to correct a cited violation within the abatement period (which period 
shall not end until the entry of a final order by the Commission, in the case of any 
review proceedings under this section initiated by the operator wherein ib*. 
Commission orders, after an expedited hearing, the suspension of the abatement 
requirements of the citation after determining that the operator will suffer 
irreparable loss or damage from the application of those requirements), the Sec- 



97 

retary shall notify the operator of such failure, of the proposed penalty under 
section 111 of that failure, and that the operator has 15 working days to contest 
the notification or proposed penalty. If the operator does not so notify the Secre- 
tary within the 15 working days, the notification and proposed assessment shall 
be deemed a final order of the Commission and not subject to review by any court 
or agency. 

Section 106(c) (1) prohibits discharging, discriminating against, or interfering 
with the exercise of statutory rights by any mine employee or applicant for em- 
ployment because he filed a complaint or instituted or caused to be instituted any 
proceeding under or related to this Act, or because such employee is the subject 
of medical evaluations and potential transfer pursuant to a standard issued 
under Section 102(a) of this Act, or testified or is about to testify in any such 
proceeding, or exercised for himself or others any statutory right afforded by this 
Act. 

Section 106(c) (2) authorizes any mine employee or applicant who believes that 
he has been discharged or otherwise discriminated against or interfered with by 
any person in violation of this subsection to, within 30 days after such violation, 
file a complaint with the Secretary, who shall then make any appropriate in- 
vestigation. If upon such investigation, the Secretary determines there has been 
such violation, he shall immediately file a complaint with the Commission pro- 
posing an order granting appropriate relief. The Commission shall afford an 
opportunity for a hearing and, based on findings of fact, issue an order affirming, 
modifying, or vacating the Secretary's proposed order or directing other ap- 
propriate relief. Such order is final 30 days after its issuance. The Commission 
shall have the authority to order all appropriate relief, including rehiring or 
reinstatement of the miner to his former position with back pay and interest, and 
during any hearing, the complaining employee or applicant may present evidence 
on his behalf. 

Section 106(c) (3) requires the Secretary, within 90 days of the receipt of a 
complaint filed under this subsection, to notify the complainant of his deter- 
mination whether a violation has occurred. If the Secretary determines there 
is no violation the complainant may file, within 30 days of such notice, before the 
Commission charging discrimination under paragraph (1). The Commission 
shall afford an opportunity for a hearing and thereafter shall issue an order dis- 
missing or sustaining the complainant's charges and, if sustained, granting ap- 
propriate relief. Such an order becomes final 30 days after its issuance. When 
such order sustains the miner's charges, all reasonable expenses (as deter- 
mined by the Commission) incurred by the miner related to such proceedings 
shall be assessed against the violator. Proceedings under this section shall be 
expedited by the Secretary and the Commission. A Commission order under this 
paragraph shall be subject to judicial review under section 107. Violations of 
paragraph (1) by any person shall be subject to the provisions of sections 109 
and 111(a). 

Section 106(d) — provides that if an operator notifies the Secretary that he 
intends to contest the issuance or modification of an order or a notification, or 
the reasonableness of an abatement period, or any miner or representative of 
miners notifies the Secretary that he plans to so contest, the Secretary shall 
immediately so advise the Commission. The Commission must then provide an 
opportunity for a hearing and thereafter issue an order affirming modifying or 
vacating: the Secretary's citation, order or proposed penalty or directing other 
appropriate relief. Such an order becomes final 30 days after its issuance. 

The rules of procedure prescribed by the Commission shall provide affected 
miners or their representatives an opportunity to participate as parties to 
Commission hearings under this subsection. The Commission shall take what- 
ever action is necessary to expedite proceedings for hearing appeals of orders 
issued under section 105 but shall not grant temporary relief from the issuance 
of an order under subsection (c) . 

Section 101. Judicial Review 

Section 107(a) — permits any person adversely affected or aggrieved by an order 
of the Commission issued under this Act to obtain review of such order or deci- 
sion in any appropriate U.S. Court of Appeals by filing a written petition within 
30 days of the issuance of the order. The subsection specifies those procedures 
to be followed after a petition for review is filed including : 

(1) The clerk of the courts transmits a copy of the petition to the Com- 
mission and other parties. 



98 

(2) The Commission files in court the proceeding record pursuant to 28 
United States Code 2112 and the courts shall then ha\ e exclusive jurisdiction. 

(3) The court is authorized to grant appropriate temporary relief or 
restraining orders and may enter and enforce a decree affirming, modifying, 
or setting aside in whole or in part the Commission's order. 

(4) Unless ordered by the court, the commencement of proceedings shall 
not stay the Commission's order. 

(5) Objections not urged before the Commission will not be considered by 
the court unless the failure to urge such objection is excused because of 
extraordinary circumstances. The Commission's findings of fact shall be 
conclusive when supported by substantial evidence on the record as a whole. 

(G) Any party may apply for leave to adduce additional evidence and if 
such evidence is material and there were reasonable grounds for not ad- 
ducing such evidence before the Commission, the court may order the evidence 
taken before the Commission and made part of the record. The Commission 
may then modify its findings of fact or make new findings and shall file such 
findings, which shall be conclusive if supported by substantial evidence on 
the record as a whole. The Commission may modify or set aside its original 
order due to such modified or new findings of fact. 

(7) The judgment and decree of the court shall be final except subject 
to review by the Supreme Court of the United States, pursuant to 2S United 
States Code 1254. 

(8) Petitions filed under this Bubsection shall be heard expeditiously. 
Section 107(b) — permits the Secretary to petition an appropriate United 

States Court of Api>cals for review or enforcement of the Commission's final 
order and, to the extent applicable, the provisions of section 107(a) shall govern 
such proceedings. If no review petition, pursuant to section 107(a) Is filed within 
30 days after service of the Commission's order, the Commission's findings of 
fact and order shall be conclusive in connection with any enforcement petition 
filed by the Secretary after such .",<> day period. In any such case, or in the case 
of a final order by the Commission under section 10G (a) or (b), the clerk of the 
court, unless otherwise ordered by the court, shall enter a decree enforcing 
the order and shall transmit copies to the Secretary and operator. In any con- 
tempt proceeding to enforce a court of appeal's decree pursuant to section 107 ( a ) 
and (b), the court of appeals may assess penalties provided in section 111 and 
invoke other available remedies. 

Section 10S. Procedures to Counteract Dtmfferout Conditions 

Section 108(a) — provides that, if upon any inspection or investigation, the 
Secretary's representative finds an imminent danger exists, he shall determine 
the affected area and issue a withdrawal order barring all persons except those 
referred to in section 105(b) from such area. The issuance of an order under 
this subsection shall not preclude the issuance of a citation under section 105 
or the proposing of a penalty under section 111. 

Section 108(b)(1) — provides that, if upon any inspection, the Secretary's 
representative finds (A) conditions exist which have not resulted in an immi- 
nent danger. (B) such conditions cannot he effectively abated with existing 
technology, and (C) reasonable assurance cannot be provided that continued 
mining will not result in an imminent danger, he shall determine the affected 
area and issue a notice to the operator or his agent of such conditions, and file a 
copy with the Secretary's and miners' representative. Upon receipt of such 
copy, the Secretary shall make appropriate investigations, including an oppor- 
tunity for the operator or miners' representative to present information relating 
to such notice. 

Section 108(b) (2) — provides that upon conclusion of such investigation and 
an opportunity for a public hearing (when requested by an interested party), 
the Secretary shall make findings of fact and, by decision, either cancel the 
notice or issue a withdrawal order barring all persons from the affected area 
except those referred to in section 105(b) until the Secretary, after a public 
hearing affording all interested persons an opportunity to present their views, 
determines that such conditions, have been ahnted. Henrines under this paragraph 
shall be of record and subject to 5 United States Code 554 but without regard 
to subsection (a) (3) thereof. 

Section 108(c) requires findings and orders issued under section 108(a) to 
contain a detniled description of the conditions which constitute an imminent 
danger, and all orders issued under this section to contain a description of the 
area of the mine throughout which persons must be withdrawn. 



99 

Section 108(d) — requires that each finding made and order issued under this 
section be in writing, signed by the person making them, and given promptly to 
the affected operator. Any order issued pursuant to sections 108(a) or (b) 
may be annulled, canceled, or revised by the Secretary's representative. Any 
order issued under sections 108(a) or (b) shall remain in effect until annulled 
by the Secretary or revised or canceled by the Commission or the courts pursuant 
to .sections 107 (a) or 108(e). 

Section 108(e) (1) — provides that any operator notified of an order under 
this section or any miner representative notified of the issuance, modification, 
or termination of such an order, may apply to the Commission within ten days 
for its annulment or revision. The Commission shall afford an opportunity for 
a hearing (in accordance with 5 United States Code 554, but without regard to 
subsection (a) (3) of such section) and thereafter issue an order, based on 
findings of fact, vacating, affirming, modifying, or terminating the Secretary's 
order. The Commission may not grant temporary relief from the issuance of 
any order under subsection 108(a). 

Section 108(e)(2) — provides that the Commission shall take appropriate 
action to expedite proceedings under this subsection. 

Section 109. Injunctions 

Section 109(a)(1) — authorizes the Secretary to institute civil action for 
relief, including a permanent or temporary injunction or any appropriate order, 
in any appropriate United States district court whenever an operator or his 
agent (a) violates or does not comply with any order or decision issued under 
this Act, (b) hinders the Secretary or the Secretary of Health, Education, and 
Welfare, or their representatives in carrying out the provisions of the Act, (c) 
refuses to admit such representatives to the mine, (d) refuses to permit the 
inspection of the mine, or the investigation of an accident or occupational disease 
related to such mine, (e) refuses to furnish any information or report requested 
by the Secretary or the Secretary of Health, Education, and Welfare in further- 
ance of the Act's provisions, or (f ) refuses to permit access to and copying of 
such records as the Secretary of Health, Education, and Welfare determine 
necessary in carrying out provisions of the Act. 

Section 109(a)(2) — authorizes the Secretary to institute civil action for 
appropriate relief, including an injunction or restraining order where he deter- 
mines that an operator is engaged in a pattern or practice of violation of 
the standards of the Act, or in a similar course of violative conduct which con- 
stitutes a continuing hazard to the health and safety of miners. 

Section 109(b) — provides that each such court shall have jurisdiction to pro- 
vide appropriate relief, to include, in cases under subsection (a) (2), requiring 
assurance or affirmative steps by an operator to assure the court that miners 
shall be afforded the protection of the Act. Temporary restraining orders must 
be issued in accordance with rule 65 of the Federal Rules of Civil Procedure, 
as amended, but seven days from the date of entry shall be the time limit when 
issued without notice. Except as otherwise provided, relief granted by the 
court to enforce an order under clause (a) of this section is effective until 
completion of all review proceedings for the order under this title, unless prior 
thereto, the district court granting such relief sets it aside or modifies it. In 
any action instituted under this section to enforce an order or decision by the 
Commission or the Secretary after a public hearing in accordance with 5 United 
States Code 554, the Commission's or Secretary's findings, if supported by 
substantial evidence on the record as a whole, shall be conclusive. 

Section 110. Postings of Notices, Orders, and Decisions 

Section 110(a) — requires that at each mine there be a mine office and a 
bulletin board at such office or near a conspicuous place near the mine en- 
trance so that notices, orders, citations, or decisions required to be posted 
thereon and easily seen, and protected against damage by the weather and 
unauthorized removal. A copy of any notice, order, citation, or decision required 
to be given to the operator must be delivered to the mine office and immediately 
posted on the bulletin board, for not less than 30 days. 

Section 110(b) — requires the Secretary to mail a copy of any notice, order, 
citation or decision given to an operator to the affected miners' representative 
and to the State official or agency that administers State laws relating to health 
or safety in the affected mine. Such notice, order, citation, or decision shall be 
available for public inspection. 



100 

Section 110(c) — provides that in order to insure prompt compliance, the 
Secretary's representative may deliver any notice, order, citation, or decision 
to the operator's agent who shall immediately take appropriate measures to 
comply. 

Section 110(d) — requires the name and address of each mine and each person 
who controls or operates such mine to be filed with the Secretary. Each operator 
must designate an official responsible for health and safety at the mine and that 
official shall receive copies of any notice, order, citation, or decision affecting that 
mine. The designation of a health and safety official does not make him subject 
to any penalty under this Act. 

Section 111. Penalties 

Section 111(a) — provides that a civil penalty of up to $10,000 shall be assessed 
for each violation of this Act or of any standard, rule, order, or regulation pro- 
mulgated pursuant to this Act. 

Section 111(b) provides than an operator who fails to correct a violation cited 
under section 105(a) within the abatement period (which period shall not end 
until the entry of a final order by the Commission, in the case of any review pro- 
ceedings under section 10G initiated by the operator wherein the Commission 
orders, after an expedited hearing, the suspension of the abatement requirements 
of the citation after determining that the operator will suffer irreparable loss or 
damage from the application of those requirements, or until the entry of an order 
of the court, in the case of any review proceeding under section 107 initiated by 
the operator wherein the court orders the suspension of the abatement require- 
ments of the citation) may be assessed a maximum civil penalty of $1,000 for each 
day the violation continues. 

Section 111(c) provides that, whenever a corporate operator violates any 
standard, rule, order, or regulation promulgated pursuant to this Act, or provision 
of this Act, any director, officer, or agent of such corporation who knowingly 
authorized, ordered, or carried out such violation shall be subject to the same 
civil penalties, fines, and imprisonment that may be imposed upon a person under 
subsections (a), (b), (e) ( (f), or (g). 

Section 111(d) provides that any operator who willfully or with gross negli- 
gence violates any provision of this Act, or any rule, order or standard promul- 
gated pursuant to the Act and thereby subjects miners to imminent danger, shall 
be subject to a civil penalty closure order by the Commission which shall : 

(i) order the mine closed for a specified period not to exceed 30 working 
days; 

(ii) provide that the mine not be reopened after such period except upon 
a subsequent order and finding by the Commission that no unabated safety or 
health violation exist at such mine (except those for which the abatement 
period has not expired), and 

(iii) provide that (luring the period of closure the operator shall pay the 

miners at their regular hourly rates, except miners found by the Commission 

to have willfully or with gross negligence contributed to the violation which 

gave rise to the closure order. 

Section 111(e) provides that any operator who willfully violates this Act or 

any standard, rule, order, or regulation promulgated pursuant to this Act shall 

upon conviction be punished by a fine of not more than $25,000 or imprisonment 

of not more than 1 year, or both. For any subsequent convictions, punishment 

shall be a fine of not more than $50,000 or imprisonment for not more than 5 

years, or both. 

Section 111(f) requires that any person convicted of giving advance notice of 
any inspection shall be punished by a fine of not more than $1,000 or imprison- 
ment for not more than 6 months, or both. 

Section 111(g) provides that whoever knowingly makes false statements, repre- 
sentations, or certifications in any document filed or required to be maintained 
pursuant to this Act shall, upon conviction be punished by a fine of not more than 
$10,000 or by imprisonment for not more than 6 months, or both. 

Section 111(h) provides that any operator who violates any of the posting 
requirements under the Act shall be assessed a civil penalty of up to $10,000 for 
each violation. 

Section lll(i) provides that any miner who willfully violates safety standards 

related to smoking or the carrying of smoking materials shall be subject to a 

civil penalty of not more than $250 for each violation assessed by the Commission. 

Section lll(j) provides that whoever knowingly distributes, sells, offers for 



101 

sale, introduces, or delivers in commerce any equipment for use in a mine, which 
is represented as complying with the provisions of this Act, or with any specifi- 
cations or regulation of the Secretary and which does not so comply, shall upon 
conviction be punished by a fine or not more than $25,000 or by imprisonment for 
not more than one year, or both. 

Section lll(k) authorizes the Commission to assess all civil penalties and to 
issue all civil penalty closure orders provided in this Act, giving consideration in 
assessing civil monetary penalties to (a) the gravity of the violation, (b) the 
good faith of the person charged, (c) the history of previous violations, and (d) 
the appropriateness of the penalty with respect to the size of business of any oper- 
ator being charged, provided that, in proposing civil penalties under this Act, the 
Secretary may rely upon a summary review of the information available to him 
and shall not be required to make findings of fact concerning the above factors. 

Section 111(1) provides that civil penalties owed under this Act shall be paid 
to the Secretary for deposits into the U.S. Treasury, and shall accrue to the 
United States. 

Section lll(m) — provides that section 111 shall not apply with respect to Title 
IV of the Federal Mine Safety and Health Act of 1976. 

Section 112. Entitlement of Miners 

Section 112 — provides that if a mine or an area of a mine is closed by an order 
issued under section 104, 105, or 108, all miners working during the shift when 
the order was issued who are idled by such order shall be entitled to full compen- 
sation by the operator at their regular rates of pay for the period they are idled, 
but not more than for the balance of the shift. If the order is not terminated be- 
fore the next working shift, all miners on that shift shall be entitled to full com- 
pensation by the operator at their regular rates of pay for the period they are 
idled, but not for more than four hours. If the closure results from an order for 
failure of the operator to comply with a health or safety standard, all miners 
idled by the order shall be fully compensated by the operator at their regular 
rates of pay for such time as they remain idled by the closing or for one week, 
whichever is lesser. When an operator fails to comply with an order issued under 
section 104, 105 or 108, all miners employed at the affected mine who would, by 
such order, be barred from such mine or area thereof shall be entitled, after all 
interested parties are given an opportunity for an expedited public hearing and 
after a final order issues, to full compensation at their regular rates of pay, in 
addition to pay received for work performed after the order was issued, for the 
period beginning when the order was issued and ending when the order is com- 
plied with, vacated, or terminated. The Commission shall have authority to order 
such compensation under this section when a miner or his representative files a 
complaint and after an opportunity for a hearing subject to a 5 USC 554. 

Section 113. Administrative Provisions 

Section 113(a) authorizes and directs the Secretary to administer this Act 
through the Mine Safety and Health Administration. Acting through the Assist- 
ant Secretary for Mine Safety and Health, the Secretary shall have authority to 
appoint, subject to civil service laws, such officers and employees as he deems 
necessary for the administration of this Act, and to prescribe powers, duties, and 
responsibilities of all officers and employees engaged in administering this Act. 

Section 113(b) authorizes the Solicitor of Labor to appear for and represent 
the Secretary in any civil litigation brought under this Act, except as provided 
in 28 U.S. Code 518(a) relating to litigation before the Supreme Court. 

Section 114. The Federal Mine Safety and Health Review Commission 

Section 114(a) establishes the Federal Mine Safety and Health Review Com- 
mission composed of five members, who shall be appointed by the President with 
the advice and consent of the Senate from among those who are qualified to carry 
out the functions of the Commission under this Act. The President shall desig- 
nate one of the members to serve as Chairman of the Commission. 

Section 114(b) provides that the terms of the members of the Commission 
shall be six years, except that the first appointees to the Commission shall be 
appointed for terms of 2, 4, and 6 years ; and that if the term of one of these 
three members shall become vacant, the successor shall be appointed for the bal- 
ance of that term only. This section further provides the reasons for which a 
member of the Commission may be removed, namely, inefficiency, neglect of duty, 
or malfeasance in office. 



102 

The section gives the Chairman the responsibility for the administrative opera- 
tions of the Commission, and enables the Commission to appoint employees 
necessary for the performance of its functions, and to fix their compensation 
under the provisions of 5 U.S. Code Chapter 51 and Chapter 53, subchapter III. 
Administrative Law Judges currently assigned to mine safety at the Arlington, 
Va., office of the Department of the Interior Office of Hearings and Appeals are 
automatically transferred to the Commission on the effective date of the Act, in 
grade and position and authorizes the Chief Administrative Law Judge to elect 
to so transfer. The section further provides that Administrative Law Judges 
associated with mine health and safety assigned to the Western offices of the 
Office of Hearings and Appeals shall have the option of transferring to the De- 
partment of Labor, under the same conditions, or remain with the Department 
of the Interior. The Commission is further authorized to appoint such Adminis- 
trative Law Judges as it deems necessary to carry out the functions of the Com- 
mission, and the assignment, removal and compensation of the Administrative 
Law Judges is to be In accordance with 5 U.S. Code, sections 3105, 3344, 5362, 
and 7521. 

Sec. 114(c) provides that the Commission is authorized to delegate to any 
group of three of its members, any or all of the Commission's powers. Two mem- 
bers shall constitute a quorum of any such designated group. 

Section 114(d)(1) enables an Administrative Law Judge of the Com- 
mission to hear and make determination on any proceeding instituted before the 
Commission and any motion in connection therewith which is assigned to such 
Administrative Law Judge by the Commission, and requires the Administrative 
Law Judge to make a report of any inch determination which constitutes his 
final determination. The decision of an Administrative Law Judge shall become 
the final order of the Commission unless directed to be reviewed within 30 days 
in accordance with the rules promulgated under the provisions of section 
114(d) (2) of this Act. 

Section 114(d) (2) directs the Commission to prescribe rules of procedures for 
its review of the Administrative Law Judges' decisions in cases under this Act 
which shall meet the following standards for review. 

(A) Petitions for Discretionary Review <h Witliin 30 days of its issuance, 
any party may file a petition for discretionary review by the Commission of an 
administrative judge's decision. Such review is not a matter of right but of the 
Commission's sound discretion. 

(ii) Such petitions shall be filed only upon one or more of the following 
grounds : 

(1) A finding or conclusion of material fact is not supported by substantial 
evidence. 

(2) A necessary legal conclusion is erroneous. 

(3) The decision is contrary to law, or to the Commission's promulgated 
rules and decisions. 

(4) A substantial question of law, policy, or discretion is involved. 

(5) A prejudicial error was committed in the proceedings. 

(iii) Indicates some technical requirements of such petitions. Also, except for 
good cause shows no assignment of error shall rely on questions of fact or law 
upon which the administrative law judge has not had opportunity to pass. The 
Commission's review shall be granted by an affirmative vote of two of the Com- 
missioners present and voting. If granted review shall be limited to questions 
raised by the petitioner. 

(B) Review by the Commission at its own initiative — Within 30 days after 
the issuance of a decision of an administrative law judge, the Commission, by 
affirmative vote of two of the Commissioners present and voting, may review 
such case but only on the grounds that the decision may be contrary to law or 
Commission policy or that a novel question of policy has been presented. Such 
grounds shall be specifically stated in the order to review. If a party's petition for 
discretionary review has been granted, the Commission shall not raise or con- 
sider additional issues in such review proceedings except in compliance with this 
paragraph. 

(C) Scope of Review — For purposes of Commission review under paragraphs 
(A) and (B) of this subsection, the record shall include (1) all matters consti- 
tuting the record upon which the decision of the administrative law judge was 
based, (2) rulings upon proposed findings and conclusions, (3) the decision of 
the administrative law judge, (4) any petition for discretionary review, re- 
sponses thereto, and the Commission's order for review, and (5) briefs filed on 



103 

review. No other material shall be considered by the Commission upon review. 
The administrative law judge's findings and conclusions of fact shall be set aside 
only if unsupported by substantial evidence of record. The Commission may 
remand the case to the administrative law judge or affirm, set aside, or modify 
his decision or order 

Sec 114(e)— provides that at hearings before the Commission or its Adminis- 
trative Law Judges, attendance and testimony of witnesses and the production of 
books and documents may be compelled. The Commission or Administrative Law 
Judge may also compel testimony to be taken by deposition. Witnesses are to be 
paid the same fees and mileage that are paid in U.S. courts. 

Upon application to the appropriate district court, such court can require 
a person to appear, testify or produce evidence as ordered by the Commission 
or the Administrative Law Judge. Any failure to obey such court order is 
punishable as contempt. 
Section 115. Authorization of Appropriations 

Section 115— authorizes appropriations of any moneys in the Treasury not 
otherwise appropriated that may be necessary to carry out the provisions of 
this title. 

Section 116(a)— requires each operator to have a safety training program 
which shall be approved by the Secretary, and requires the Secretary, within 
180 days of enactment of this Act, to promulgate regulations dealing with the 
requirements of such training programs, but which require not less than that: 

(1) new underground miners are to receive no less than 40 hours of 
training, including use of the self-rescuer and respiratory devices, hazard 
recognition, escapeways, walk around training, emergency procedures, basic 
ventilation and roof control, electrical hazards, first aid, and the health 
and safety aspects of the particular job to which they will be assigned. 

(2) new surface miners to receive no less than 24 hours of training to 
include self-rescue and other respiratory devices, hazard recognition and 
emergency procedures, electrical hazards, first aid, walk around training, 
and safety and health hazards of the job to which they will be assigned ; 

(3) no less than 8 hours of refresher training annually, except that 
existing miners are to receive this refresher training within 90 days after 
approval of the operator's safety training program ; and 

(4) training for any miner who is being reassigned to a new task in the 
specific safety and health aspects of that task. 

Section 116(b) requires that the training given to miners under this section 
is to be given during normal working hours, and that miners shall be paid at 
the normal rate of pay for attending such training, and that if the training is 
to be given away from the normal work place, miners are to be compensated 
for the expenses attendant to taking such training. 

Section 116(c) requires that upon the completion of each training program 
the operator shall certify that the miner received that training, and that such 
certification shall be in a form approved by the Secretary, which form shall 
conspicuously indicate that false certification of training shall be punishable 
under section 111 (g) and (h) of the Act. The section further requires the 
operator to maintain at the mine, available for inspection, a copy of this cer- 
tification, and that the operator shall give a copy of the certificate to each 
miner upon the completion of the training, and when that miner shall leave the 
operator's employ. 

Section 116(d)— requires the Secretary, within 180 days after enactment, to 
publish regulations providing that mine rescue teams made up of Federal mine 
inspectors shall be maintained at each district, subdistrict and field office of 
the Mine Safety and Health Administration, as practicable. 

Section 202. Amendments with Respect to Interim Mandatory Health Standards 
Section 202(a) (1)— makes all mines covered by this Act subject to the 
interim mandatory health standards of section 201(a) of the Federal Mine 
Safety and Health Act of 1977. 

Section 202(a)(2)— applies to all mines subject to this Act the provisions 
of section 201(b). 

Section 202(b)— applies the dust standard of section 205 to all mines covered 
oy tne Act. 

totWs t Act 202(C) ~ aPPlieS tbG n ° iSe standard of section 206 to all mines subject 



104 

Section 202(d)(1) -amends Section 202(e) of the Federal Coal Mine Health 
and Safety Act of 1969 to provide that references to respirable dust shall mean 
averm ^concentrations of respirable dust measured with a device approved 
M u'e Sec?etarV and the Secretary of Health, Education and Welfare 

Section 202(d) (2)-amends Section 318 of the Federal Coal Mine Health and 
Safety Act of 1969 by striking subsection (k) thereof. 

Section 203-Amcndmcnts with respect to interim mandatory safety standards 
for underground coal mines 

Section 203-amends Section 301 of the Federal Coal Mine Health and Safety 
Act of 1969 by striking subsections (c) and (d) thereof. 

TITLE III— MISCELLANEOUS PROVISIONS 

Section 301. Transfer Matters 

Section 301(a)— transfers the functions of the Secretary of the Interior 
under the Federal Coal Mine Health and Safety Act of 1969 as amended except 
in the safety research function and the Federal Metallic and Nonmetalhc Mine 
Safety Act of 1966 to the Secretary of Labor, except those expressly transferred 
to the Commission by this Act. „t nAa 

Section 301(b) (1)— provides that the mandatory standards relating to mines 
issued bv the Secretary of the Interior under the Federal Metal and Nonmetalhc 
Mine Safety Act of 1966 and standards and regulations under the Federal Coal 
Mine Health and Safety Act of 1969 which are in effect on the date of enact- 
ment of this Act shall remain in effect as mandatory standards applicable to 
metallic and nonmetallic mines and coal mines respectively under the Federal 
Mine Safety and Health Act of 1977. . 

Section 301(b) (2)— provides that within 60 days after the effective date of 
the Amendments Act of 1976, the Secretary shall establish an advisory Com- 
mittee under section 103 which shall review the advisory standards promul- 
gated under the 1966 metal Act, and within 180 days recommend to the Secre- 
tary which of these standards or any modifications thereof which does not 
diminish substantially the health and safety of miners shall be promulgated 
as permanent standards. The Secretary shall publish the recommendations of 
the Advisory Committee within 60 days, and afford interested persons a i>eriod 
of 25 days to comment. Within 30 days after the close of the comment period, 
the Secretary shall publish in the Federal Register the standard he shall adopt, 
as modified as a result of the comments, or if he decides not to publish such 
standard, his explanation therefor. 

Section 301(b) (3)— provides that all interpretations, regulations, and in- 
structions of the Secretary of the Interior or the Director of the Bureau of 
Mines, in effect on the date of enactment of this Act and not inconsistent with 
any provision of this Act or any amendment made by this Act, shall be pub- 
lished in the Federal Register and shall continue in effect until modified or 
superseded in accordance with the provisions of this Act. 

Section 301(c) (1) — transfers to the Department of Labor or the Commission, 
as appropriate, all personnel, property, records, obligations, unexpended bal- 
ances of appropriations, and commitments which nre used primarily with re- 
spect to any transferred function under section 301(a). The transfer of per- 
sonnel pursuant to this paragraph shall be without reduction in classification 
or compensation for one year after such transfer, except that the Secretary 
shall have full authority to assign personnel during such one-year period in 
order to efficiently carry out functions transferred to him under this Act. 

Section 301(c)(2) — provides that all orders, decisions, determinations, rules, 
regulations, permits, contracts, certificates, licenses, and privileges (A) which 
have been issued, made, granted, or allowed to become effective in the exercise 
of functions which are transferred under this section by any department or 
agency or any functions of which are transferred by this section and (B) which 
are in effect when this section takes effect, shall continue in effect according to 
their term until modified, terminated, superseded, set aside, or repealed by the 
Secretary, the Commission, any court of competent jurisdiction, or operation of 
law. 

Section 301(c) (3) — provides that the provisions of this section shall not affect 
any proceedings pending at the time this section takes effect before any depart- 
ment or agency, functions of which are transferred by this section ; except that 
such proceedings as they relate to transferred functions shall be continued before 



105 

the Secretary or the Commission. Orders shall be issued in such proceedings, ap- 
peals shall be taken therefrom, and payments shall be made pursuant to such 
orders, as if this section had not been enacted, and orders issued in any such 
proceedings shall continue in effect until modified, terminated, superseded, or 
repealed by the Secretary, the Commission, a court of competent jurisdiction, or 
operation of law. 

Section 301(c) (4) — provides that the provisions of this section shall not affect 
suits commenced prior to this section's effective date and in all such suits pro- 
ceedings shall be had, appeals taken, and judgments rendered, as if this section 
had not been enacted ; except that if before this section's effective date, any 
department or agency (or officer thereof in his official capacity) is a party to a 
suit involving functions transferred to the Secretary ; then such suit shall be 
continued by the Secretary. No cause of action, and no suit action, or other pro- 
ceeding, by or against any department or agency (or officer thereof in his official 
capacity), functions of which are transferred by this section, shall abate by 
reason of this section's enactment. Cause of action, suits, actions, or other pro- 
ceedings may be asserted by or against the United States or the Secretary as 
appropriate and in any litigation pending when this section takes effect, the 
court may at any time, on its own motion or that of any party, enter an order 
which will give effect to the provisions of this paragraph. 

Section 301(d) — provides that for purposes of this section, the term "function" 
includes power and duty, and the transfer of a function of an agency or the head 
of a department shall also be a transfer of all functions which are exercised by 
any office or officer of such agency or department. 

Section 302. Mine Safety and Health Administration 

Section 302(a) — establishes in the Labor Department, a Mine Safety and 
Health Administration to be headed by an Assistant Secretary of Labor for Mine 
Safety and Health appointed by the President, with the Senate's advice and 
consent. The Secretary is authorized and directed to carry out his functions un- 
der the Act through the Administration except as otherwise provided. 

Section 302 I b | — amends 5 United States Code 5315 by adding "[109] Assistant 
Secretary of Labor for Mine Safety and Health." 

Section 302(c) — provides that the Commission shall maintain its principal 
offices in Washington. D.C., except that it shall be authorized to conduct pro- 
ceedings elsewhere if in the convenience of the public or party. 

Sec. 302(c) (1) — amends 5 USC 51-15 by adding "(64) Chairman, Federal Mine 
Safety and Health Review Commission." 

Sec. 302(c) (2)—-amends 5 USC 5315 by adding "(108) Members, Federal Mine 
Safety and Health Review Commission." 

Section 303. Amendments with Respect to Mine Safety and Health Administra- 
tion 

Section 303(a)(1) applies the research provisions of section 501(a) to all 
mines covered by this Act. 

Section 303(a) (2) — further amends Section 501(a) by establishing authority 
for the Secretaries of the Interior and Health, Education and Welfare to, upon 
the specific written request of an operator or authorized representative of miners, 
determine whether any substance or physical agent found in a mine has poten- 
tially harmful effects, and to so inform the operators and miners of such findings 
as soon as possible. 

Section 303(a) (3) amends section 501(b) such that research activities relat- 
ing to mine health will be carried out by the Secretary of Health, Education, and 
Welfare through the National Institute for Occupational Safety and Health, and 
that the research activities relating to safety are extended to all mines now cov- 
ered by this Act, is to be performed by the Secretary of the Interior in 
coordination with the Secretary. 

Section 303(a) (4) extends to all mines covered by this Act the Secretary of 
Health. Education, and Welfare's authorization under section 501(d) to conduct 
studies and research involving the protection of life and prevention of diseases 
relating to certain non-miners who work with or around mine products. 

Sec. 303(a) (5) — amends Section 501 by requiring the Secretary to compile 
accurate statistics on work injuries and illnesses occurring in mines subject to 
the Federal Mine Safety and Health Act of 1976. 

:ion 303(b) extends the training and education provisions of section 502 to 
all mines now covered by the Act. 



106 

Section 303(c) (1) amends section 503(a) to authorize the Secretary in coor- 
dination with the Secretary of Health, Education, and Welfare, to make grants 
to any State in which mining takes place. 

Section 303(c)(2) applies to the criteria for approval of State grant appli- 
cations to all mines now covered by this Act. 

Section 303(d) (1) expands the exchange of State and Federal inspection 
reports provided for in section 503(f) to include inspection reports of all mines 
covered by this Act. 

Section 303(d) (2) extends to any mining State the 80 percent limit on State 
grants in any fiscal year provided for in section 503 ( g ) . 

Section 303(e) (1) revises the qualifications for mine inspectors under section 
505 to include practical experience in mining in lieu of "practical experience in 
the mining of coal." 

Section 303(e) (2) — amends Section 505 by requiring that mine inspectors, to 
the extent feasible, be qualified with at least 5 years practical mining experience 
with consideration in assignment given to previous experience in the particular 
type of mine to be inspected. 

Section 303(f) amends section 506(b) such that any State law or regulation 
providing for health and safety standards applicable to any mine now covered 
by this Act and that (1) are more stringent than Federal law, or (2) apply to 
any area not covered by Federal law, shall not be held to be in conflict with the 
Act. 

Section 303(g) (1) amends section 511(a) such that the Secretary's annual re- 
port shall cover health and safety relating to all mines now covered by this Act. 

Section 303(g) (2) amends section 511(b) such that the annual report of the 
Secretary of Health, Education, and Welfare shall cover health matters relating to 
all mines covered by this Act. 

Sec. 303(h) — amends Section 502 by adding the following new section: 

(c) (1) The National Mine Health and Safety Academy is to be maintained as 
an agency of the Interior Department. The Academy is responsible for mine 
safety and health inspectors' training and technical support personnel training. 
The Academy is authorized to enter into cooperative educational and training 
agreements. 

(c) (2) provides that the Academy shall use the facilities and personnel of the 
Interior Department and other personnel as mutually agreed upon by the Secre- 
taries of Labor and Interior. Officers and employees of the Academy shall be ap- 
pointed by the Secretary of Interior. 

(c) (3) provides that the Secretary of Interior shall conduct safety research 
under Section 501 in coordination witli the Secretary of Labor. The Secretaries 
are authorized to enter into contractual or other agreements for the perform- 
ance of safety related research. 

Section 303 (i) amends section 7(b) (5) of the Small Business Act such that 
appropriate loans are available to small business concerns that operate any 
mine subject to this Act. 

Section SOJ^. Savings Provision 

This section provides that nothing in this Act or the amendments made by the 
Act shall be construed to reduce the number of inspectors enforcing the Federal 
Coal Mine Health and Safety Act of 1009 and the Federal Metal and Nonmetallic 
Mine Safety Act of 1966 as in effect prior to the effective date of this Act or to 
reduce the number of inspectors enforcing the Occupational Safety and Health 
Act of 1970. 

Section 305. Budget Provision 

This section provides that in the preparation of the Budget message required 
under section 201 of the Budget and Accounting Act of 1921, the President shall 
set forth as separate appropriation accounts those amounts required for ap- 
propriations for mine health and safety pursuant to this Act and for occupational 
safety and health pursuant to the Occupational Safety and Health Act of 1970. 

Section 306. Repealer 

This section repeals the Federal Metal and Nonmetallic Mine Safety Act of 
1966. 

Section 307. Effective Date 

This section establishes the effective date of this Act and the amendment made 
by this Act as July 1, 1978 except that the Secretary is authorized to establish 



107 

rules and regulations necessary for the efficient transfer of functions provided 
under this Act. 

Mine Safety : The Time for Action is Now ! 

Mr. Church. Mr. President, the Federal Mine Safety and Health 
Amendments of 1977 is a carefully reasoned effort to improve our Na- 
tion's mine health and safety programs. This legislation is long over- 
due and I am pleased to join in its introduction. 

This measure is very similar to legislation that I cosponsored last 
year. Unfortunately, that bill, S. 1302, failed to reach a vote by the 
full Senate due to time considerations. 

The time for action is now. As noted in the report accompanying S. 
1302— 

Every working day of the year, at least one miner is killed and sixty-five miners 
suffer disabling injuries in our nation's mines. 

The extent and frequency of mining mishaps in the United States' 
is appalling. It is all too apparent that existing laws and enforcement 
programs are inadequate to provide a level of safety for miners that 
one would expect from an advanced, industrialized nation. 

Many of you, I am sure, will recall the disastrous fire at the Sunshine 
Silver Mine in 1972 when 91 men perished. Numerous disasters have 
followed to remind us that all too often health and safety legislation 
receives national attention only after terrible loss of life. Do we need 
witness further mine tragedies before we act to rectify the weaknesses 
in our mine safety laws ? 

Mining is an extremely important industry in Idaho. It has played a 
vital part in the development of our State and is the economic founda- 
tion of the communities in Shoshone County. The industry accounts 
for approximately 5 percent of the total wages paid in the State of 
Idaho. 

But as important as this industry is, our firt concern must be for the 
safety of the miners who work a mile or more beneath the surface. In- 
dustry scare talk about reduced production cannot change the fact 
that needless loss of life continues in our Nation's mines. The need for 
legislative improvements in our mine safety laws is imperative. 

Miners still go into the mines without basic safety training ; mini- 
mal civil penalties for safety violations discourage the capital invest- 
ment necessary to improve dangerous working conditions; and the 
government is without the power to bring continuing violation to halt. 

In May of 1972, I suggested that the transfer of mine safety re- 
sponsibility from the Department of Interior to the Department of 
Labor would be in the best interest of vigorous enforcement of health 
and safety standards. I am pleased that this bill has adopted that ap- 
proach, recognizing that the enforcement of these laws by the Depart- 
ment of the Interior involves a basic conflict in its missions. On the one 
hand, Interior is expected to work in close cooperation with the mining 
industry to maximize production, while on the other, it is called to in- 
terrupt production when necessary for mine safety reasons. 

Basically, this transfer contemplates a change in philosophy in the 
enforcement of mine safety laws. In 1975, enforcement of these laws in 
underground mines, open pit mines, crushed stone operations, sand and 
gravel operations, and mills resulted in underground mine operations 
having the lowest violation to closure ratio — lower than any of the 



20-040 O - 78 



108 

other categories. And this, despite the fact that 36 percent of the fatali- 
ties in mines and mills for 1975 occurred in underground mines. 

The argument that such a transfer would result in the enforce- 
ment of mine safety laws by OSHA is spurious. The bill will allow 
MESA to maintain its independence within the Department of Labor. 
Under no circumstances will its functions be submitted by OSHA. 

The effectiveness of mine safety enforcement has been further com- 
promised by the existence of two separate laws : the Metal and Non- 
metallic Mine Safety Act of 1966 and the Coal Mine Health and Safety 
Act of 1969 This division means duplication of efforts and results in 
a diminished enforcement capacity. 

The Metal Act, in particular, has proved ineffective in protecting 
miners from health and safety hazards. There are no "teeth" in it — no 
civil penalties for violations of the Act's standards. These standards 
are, for the most part, advisory, and the failure to comply with them 
does not place the operator in violation of the law. Moreover, the en- 
forcement of the mandatory standards has been haphazard, at best. 

In 10 years under the Metal Act, the rate of fatalities and serious 
injuries has improved only 26 and 12 percent, respectively. In contrast, 
during the 6 years of the Coal Act'.- exigence, the rate of improvement 
of fatality and serious injury due to mining operations has been 59 and 
28 percent respectively, more than twice as great as that under the 
Metal Act, indicating that our coal miners are getting far better results. 
Our hard rock miners deserve the same measure of protection as that 
received by our coal miners. 

Despite all the evidence and the many needless deaths, there are 
those who maintain that the safety provisions in this bill should not 
encompass metal mines. They argue that such an approach would pre- 
clude "flexibility in the formulation and enforcement of standards." 
Mr. President, such arguments are specious. Nothing in this bill pro- 
hibits needed flexibility in standard making. Indeed, the rulemaking 
process is designed to produce standards tailored to meet specific 
hazards. Where safety hazards differ, so shall the standards. 

The Metal Act is clearly deficient. It does not refer to the protection 
of the miner's health; it maintains a laborious, and often interminable, 
standard-making procedure ; inspections of underground mines are re- 
quired only once a year: and penalties are lacking except for the 
drastic measure of issuing a closure order in cases of imminent danger 
or failure to abate serious hazards. 

One of the most glaring deficiencies is that no standard requiring a 
comprehensive safety training program exists. If proper training in 
self-rescue procedures had been provided to the miners at the Sunshine 
Mine in 1972, many lives might have been saved. 

In testimony before the Senate Labor and Public Welfare Commit- 
tee during hearings on S. 1302, a representative of the American Min- 
ing Congress stated that "most accidents are caused by the unsafe acts 
of men, not the absence of regulation." Yet it was not the miners who 
failed to provide an alternative escape route at the Sunshine Mine. The 
miners did not distribute self-rescuers without instruction in their use. 

We should have equal protection for all miners. In 1966, the Senate 
Labor Committee said that the state of safety in the extractive industry 
was alarming — it remains so today. Unless we act decisively, we risk 
the lives of those who work our Nation's mines. 



109 

I endorse this legislation's concept of combining protection of all 
mine workers under a single, comprehensive statutory plan. This bill 
adopts the best features of existing statutes and transfers administra- 
tion to the Department of Labor's Mine Safety and Health Adminis- 
tration. It is a good bill. It will benefit many. It is a bill that is needed — 
now. 

[The text of S. 717 as introduced follows :] 



110 



95th CONGRESS 

1st Session 



S.717 



IN THE SENATE OF THE UNITED STATES 

February 11 (legislative day. February 1), 1977 

Mr. "Williams (for himself, Mr. Abourrzk, Mr. Anderson, Mr. Bayh, Mr. 

Brooke, Mr. ( 'am;. Mr. Church, Mr. Clark, Mr. Cranston, Mr. Eagleton, 
Mr. Ford, Mr. Heinz, Mr. Hiddleston, Mr. HuMFHRRT, Mr. Jaytts, Mr. 
Kennedy, Mr. McGoVERX, Mr. Magnlson, Mr. Metcalf, Mr. Nelson, 
Mr. Pell. Mr. Randolph, Mr. Riegle, Mr. Sciiweiker, Mr. Stafford, and 
Mr. Stevenson) introduced the following bill; which was read twice and 
referred to the Committee on Human Resources 



A BILL 

To promote safety and health in the mining industry, to prevent 
recurring disasters in the mining industry, and for other 
purposes. 

1 Be it enacted hjl the Senate and House of Beprescnta- 

2 fives of the United States of America in Congress assembled, 

3 That this Act may he cited as the ''Federal Mine Safety and 

4 Health Amendments Act of 1977". 

II 



Ill 



2 

1 TITLE I— AMENDMENTS TO THE GENERAL 

2 PROVISIONS OF THE FEDERAL COAL MINE 

3 HEALTH AND SAFETY ACT OF 1969 

4 SHOET TITLE 

5 Sec. 101. The first section of the Federal Coal Mine 

6 Health and Safety Act of 1969 is amended to read as fol- 

7 lows: "That this Act may be cited as the 'Federal Mine 

8 Safety and Health Act of 1977' ". 

9 DEFINITIONS AND APPLICABILITY 

10 Sec. 102. (a) (1) Section 2 of the Federal Coal Mine 

11 Health and Safety Act of 1969 is amended by striking out 

12 "coal" wherever it appears. (2) Section 2(g) (1) of such 

13 Act is amended by striking out "the Interior" and inserting 

14 in lieu thereof "Labor". 

15 (b) (1) Section 3 (a) of such Act is amended by strik- 

16 ing out "the Interior" and inserting in lieu thereof "Labor". 

17 (2) Section 3 (d) of such Act is amended by deleting 

1 8 the semicolon at the end thereof, and inserting in lieu thereof 

19 "or any independent contractor performing services or con- 

20 struction at such mine;" 

21 (3) Section 3(h) of such Act is amended to read as 

22 follows : 

23 "(h) 'Mine' means (1) an area of land from which 

24 minerals are extracted in nonliquid form or, if in liquid 

25 form, are extracted with workers underground, (2) private 



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1 ways and roads appurtenant to such area, and (3) lands, 

2 excavations, underground passageways, shafts, slopes, tun- 

3 nels, and workings, structures, facilities, equipment, machines, 

4 tools, or other property including impoundments, retention 

5 dams, and tailings ponds, on the surface or underground, used 
G in, or to he used in, or resulting from, the work of extracting 

7 such minerals from their natural deposits in nonliquid form, 

8 or if in liquid form, with workers underground, or used in the 

9 milling of such mineral*, or the work of preparing coal, and 

10 includes custmn coal preparation facilities, except that with 

11 respect to protection against radiation hazards such term shall 

12 not include property used in the milling of source minerals 

13 defined in the Atomic Energy Act of 1954, as amended. In 

14 making a determination of what constitutes mineral milling 

15 for purposes of this Act the Secretary shall give due consider- 
1G ation to the convenience of administration resulting from the 

17 delegation to one Assistant Secretary of all authority with 

18 respect to the health and safety of miners employed at one 

19 physical establishment." 

20 (4) Sections 3 (d), (e), (g) , and (j) of such Act are 

21 each amended by striking out the word "coal" wherever it 

22 appears. 

23 (5) Section 3 of such Act is amended by striking out the 

24 word "and" at the end of paragraph (1) , by striking out the 

25 period at the end of paragraph (m) and inserting in lieu 



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1 thereof a semicolon, and by adding at the end thereof the 

2 following new paragraphs : 

3 " (n) 'Administration' means the Mine Safety and 

4 Health Administration in the Department of Labor; and 

5 " (o) 'Commission' means the Federal Mine Safety and 

6 Health Review Commission." 

7 (c) Section 4 of such Act is amended by striking out 

8 the word "coal". 

9 (d) (1) Section 5(c) of such Act is amended by strik- 

10 ing out Labor" and inserting in lieu thereof "the Interior". 

11 (2) Section 5(f) of such Act is amended by striking 

12 out the word "coal" wherever it appears, and by striking 

13 out "section 106" and substituting "section 107". 

14 TITLE II— MINE SAFETY AND HEALTH 

1 5 STANDARD AMENDMENTS 

16 AMENDMENT TO TITLE 1 

17 Sec. 201. Title I of the Federal Coal Mine Health and 
Safety Act of 1969 is amended to read as follows: 

19 "duties 

20 "Sec. 101. (a) Each mine operator (1) shall furnish 

21 to each miner employment and a place of employment which 
are free from recognized hazards that are causing or are 
likely to cause death or harm to such miner; and (2) shall 
comply with the safety and health standards and all rules, 
regulations, and orders promulgated under this Act; and 



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1 "(b) Each miner subject to the provisions of this Act 

2 shall comply with the safety and health standards and all 

3 rules, regulations, and orders promulgated under this Act 

4 which are applicable to his own actions and conduct. 

5 "safety and health standards 

(i Sec. 102. (a) The Secretary may by rule promulgate, 

7 modify, or revoke any safety and health standards for the 

health and safety of miners, including standards for mine 

9 rescue and fircfighting operations, and for the prevention 

10 of accidents, injuries, or health hazards in mines which are 

11 subject to this Act in accordance with section 553 of title 5, 

12 United States Code (without regard to any reference in such 

13 section to sections 556 and 557 of such title), and the fol- 
1 i lowing provisions : 

15 "(1) Whenever the Secretary, upon the basis of infor- 

1G mation submitted to him in writing by an interested person, 

17 a representative of any organization of employers or em- 

18 ployees, a nationally recognized standards-producing organi- 

19 zation, the Secretary of Health, Education, and Welfare, the 

20 National Institute for Occupational Safety and Health, or a 

21 State or political subdivision, or on the basis of information 

22 developed by the Secretary or otherwise available to him, 

23 determines that a rule should be promulgated in order to 

24 serve the objectives of this Act, the Secretary may request 

25 the recommendations of an advisory committee appointed 



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1 under section 103 of this Act. The Secretary shall provide 

2 such an advisory committee with any proposals of his own 

3 or of the Secretary of Health, Education, and Welfare, to- 

4 gether with all pertinent factual information developed by 

5 the Secretary or the Secretary of Health, Education, and 

6 Welfare, or otherwise available, including the results of re- 

7 search, demonstrations, and experiments. An advisory com- 

8 mittce shall submit to the Secretary its recommendations 

9 regarding the rule to be promulgated within ninety days from 

10 the date of its appointment or within such longer or shorter 

11 period as may be prescribed by the Secretary, but in no event 

12 for a period which is longer than one hundred and eighty 

13 days. When the Secretary receives a recommendation from 

14 the National Institute for Occupational Safety and Health 

15 that a rule be promulgated, modified, or revoked, the Secre- 

16 tary must, within sixty days after receipt thereof, refer such 

17 recommendation to an advisory committee pursuant to this 

18 paragraph, or publish such as a proposed rule pursuant to 

19 paragraph (2) of this subsection, or publish in the Federal 

20 Register his determination not to do so, and his reasons 

21 therefor. 

22 "(2) The Secretary shall publish a proposed rule pro- 

23 mulgating, modifying, or revoking a safety and health stand- 

24 ard in the Federal Register. If the Secretary determines that 

25 a rule should be proposed and in connection therewith has 



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1 appointed an advisory committee as provided by paragraph 

2 ( 1 ) of this subsection, the Secretary shall publish a proposed 

3 rule or the reasons for his determination not to publish such 

4 rule, within sixty days following the submission of the advi- 

5 sory committee's recommendation, or the expiration of the 
G period of time prescribed by the Secretary in such submission. 

7 In either event, the Secretary shall afford interested persons 

8 a period of thirty days after any such publication to submit 

9 written data or comments on the proposed rule. 

10 "(3) On or before the last day of the period provided 

] 1 for the submission of written data or comments under para- 

12 graph (2) , any interested person may file with the Secretary 

IS written objections to the proposed rule, stating the grounds 

14 therefor and requesting a public hearing on such objections. 

15 Within thirty days after the last day for filing such objeo- 

16 tions, the Secretary shall publish in the Federal Register a 

17 notice specifying the safety or health standard to which 

18 objections have been filed and a hearing requested, and 

19 specifying a time and place for such hearing. Any hearing 

20 under this subsection shall be held promptly. Hearings re- 

21 quired by this subsection shall be informal and shall be 

22 conducted by the Secretary, who may prescribe such rules 

23 and make such rulings concerning procedures in such hear- 

24 ings to avoid unnecessary costs or delay. A verbatim tran- 



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1 script shall be taken of any such informal hearing and shall 

2 be available to the public. 

3 " (4) Within sixty days after the expiration of the 

4 period provided for the submission of written data or com- 

5 ments under paragraph (2), or within sixty days after the 
q completion of any hearing held under paragraph (3), the 
7 Secretary shall issue a rule promulgating, modifying, or re- 
S voking a safety or health hazard or make a determination 
9 that a rule should not be issued. Such a rule may contain a 

10 provision delaying its effective date for such period (not in 

11 excess of ninety days) as the Secretary determines may be 

1 2 necessary to insure that affected operators and miners will be 

13 informed of the existence of the standard and of its terms and 
-^ that operators affected arc given an opportunity to familiarize 
15 themselves and their employees with the existence of the 
3(j requirements of the standard. 

yj "(5) (A) The Secretary, in promulgating standards 

lg dealing with toxic materials or harmful physical agents under 

19 this subsection, shall set standards which most adequately 

2Q assure on the basis of the best available evidence that no miner 

2i will suffer any material impairment of health or functional 

22 capacity even if such miner has regular exposure to the 

23 hazards dealt with by such standard for the period of his 

24 working life. Development of standards under this subsection 

25 shall be based upon research, demonstration; experiments, 



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1 and such other information as may he appropriate. In 

2 addition to the attainment of the highest degree of health and 

3 safety protection for the employee, other considerations shall 

4 be the latest available scientific data in the field, the feasibility 

5 of the standards, and experience gained under this and other 

6 health and safety laws. Whenever practicable, the standard 

7 promulgated shall he expressed in terms of objective criteria 

8 and of the performance desired. 

9 (B) The Secretary of Health, Education, and Welfare 

10 as soon as possible after the date of enactment of the Federal 

11 Mine Safety and Health Amendments Act of 1977 but in 

12 no event later than three years after such date and on a 

13 continuing basis thereafter, shall, for each toxic material 

14 or harmful physical agent which is used or found in a 

15 mine, determine whether such material or agent is poten- 

16 tially toxic at the concentrations in which it is used or 

17 found in a mine, and shall immediately submit such deter- 

18 mination to the Secretary, together with all pertinent 

19 criteria. Within sixty days after receiving any determination 

20 together with criteria in accordance with the preceding 

21 sentence relating to a toxic material or harmful physical 

22 agent which is not covered by a health or safety standard 

23 promulgated under this section, the Secretary shall either 

24 appoint an advisory committee to make recommendations 

25 with respect to a health and safety standard covering such 

S.717 2 



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1 material or agent in accordance with paragraph (1) of this 

2 subsection or publish a proposed rule promulgating such 

3 a health and safety standard in accordance with paragraph 

4 (2) of this subsection or shall publish his determination 

5 not to do so. 

6 "(6) Any standard promulgated under this subsection 

7 shall prescribe the use of labels or other appropriate forms 
S of warning as are necessary to insure that employees are ap- 
9 prised of all hazards to which they are exposed, relevant 

10 symptoms and appropriate emergency treatment, and proper 

11 conditions and precautions of safe use of exposure. Where 

12 appropriate, such standard shall also prescribe suitable pro- 

13 tective equipment and control or technological procedures 

14 to be used in connection with such hazards and shall pro- 

15 vide for monitoring or measuring employee exposure at such 

16 locations and intervals, and in such manner so as to assure 

17 the maximum protection of miners. In addition, where 

18 appropriate, any such standard shall prescribe the type and 

19 frequency of medical examinations or other tests which shall 

20 be made available, by the operator or at his cost, to miners 

21 exposed to such hazards in order to most effectively deter- 

22 mine whether the health of such employees is adversely 

23 affected by such exposure. Where appropriate, the standard 

24 shall provide that where a determination is made that a 

25 miner may suffer material impairment of health or functional 



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1 capacity by reason of exposure to the hazard covered by the 

2 standard, that miner shall be removed from such exposure 

3 and reassigned. x\ny miner transferred as a result of such 

4 exposure shall continue to receive compensation for such 
.") work at not less than the regular rate of pay for miners 
G in the classification Mich miner held immediately prior to 
7 his transfer. In the event such medical examinations are in 

5 the nature of research, as determined by the Secretary of 
9 Health, Education, and Welfare, such examinations may he 

10 furnished at the expense of the Secretary of Health, Educa- 

11 tion. and Welfare. The results of such examinations or tests 

12 shall be furnished only to the Secretary or the Secretary 

13 of Health, Education, and Welfare, and, at the request of the 

14 miner, to his designated physician. 

15 "(") In promulgating or revoking standards as author- 

16 ized in this title, or in publishing any rule as authorized in 

17 this title, the Secretary shall not reduce the protection af- 

18 forded miners below that provided by any safety or health 

19 standard previously in effect. 

20 "(b) (1) The Secretary shall provide, without regard 

21 to the requirements of chapter 5, title 5, United States Code, 

22 for an emergency temporary standard to take immediate 

23 effect upon publication in the Federal Register if he deter- 

24 mines (A) that miners are exposed to grave danger from 

25 exposure to substances or agents determined to be toxic or 



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1 physically harmful, and (B) that such emergency standard 

2 is necessary to protect miners from such danger. 

3 "(2) Such standard shall be effective imtil superseded 

4 by a standard promulgated in accordance with the proce- 

5 dures prescribed in paragraph (3) of this subsection. 

6 "(3) Upon publication of such standard in the Federal 

7 Register, the Secretary shall commence a proceeding in ac- 

8 cordance with section 102 (a) of this Act, and the standard 

9 as published shall also serve as a proposed rule for the pro- 

10 ceeding. The Secretary shall promulgate a standard under 

11 this paragraph no later than nine months after publication of 

12 the emergency standard as provided in paragraph (2) of 

13 this subsection. 

14 " (c) The Secretary is authorized to grant a variance 

15 from any standard or portion thereof whenever he deter- 

16 mines, or the Secretary of Health, Education, and Welfare 

17 certifies, that such variance is necessary to permit an oper- 

18 ator to participate in research approved by him or the Sec- 

19 retary of Health, Education, and Welfare designed to demon- 

20 strate or validate new and improved techniques to safeguard 

21 the health or safety of workers. No such variance shall be 

22 granted until the Secretary shall find that the granting of 

23 such variance will not adversely affect the health or safety 

24 of the miners, and the Secretary notifies the miners affected 

25 directly and by publication in the Federal Register. 



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1 "(d) (1) Any operator may apply to the Secretary for 

2 a temporary order permitting limited noncompliance with 

3 a standard or any provision thereof promulgated under this 

4 section. Such temporary order shall be granted only if the 

5 operator files an application which meets the requirements of 

6 paragraph (2) and establishes that (A) he is unable to 

7 comply with a standard by its effective date because of 

8 unavailability of professional or technical personnel or of 

9 materials and equipment needed to come into compliance 

10 with the standard or because necessary construction or altera- 

11 tion of facilities cannot be completed by the effective date, 

12 (B) he will guarantee that employees arc afforded no less 

13 than the same measure of protection they would have been 

14 provided by such standard, and (C) he has an effective 

15 program for coming into compliance with the standard as 

16 quickly as practicable. Any temporary order issued under this 

17 subsection shall prescribe the practices, means, methods, 

18 operations, and processes which the operator must adopt and 

19 use while the order is in effect and state in detail his pro- 

20 gram for coming into compliance with the standard. Such a 

21 temporary order may be granted only after notice to em- 

22 ployees and an opportunity for a public hearing: Provided, 

23 That the Secretary may issue one interim order to be ef- 

24 fective until a decision is made on the basis of the hearing, 

25 or for sixty days, whichever is less, and the length of time 



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1 for which any such interim order may be in effect shall be 

2 deducted from the period for which a temporary order, if 

3 granted, shall be effective. No temporary order may be in 

4 effect for longer than the period needed by the employer to 

5 achieve compliance with the standard or six months, which- 

6 ever is shorter, except that such an order may be renewed 

7 not more than twice (i) so long as the requirements of this 

8 subsection are met, and (ii) if an application for renewal 

9 is filed at least ninety days prior to the expiration date of the 

10 order. No interim renewal of an order may remain in effect 

11 for longer than one hundred and eighty days. 

12 "(2) An application for a temporary order under this 

13 subsection shall contain — 

14 " (A) a specification of the standard and/or portion 

15 thereof from which the employer seeks a noncompliance 

16 order. 

17 " (B) a representation by the operator, supported by 

18 representations from qualified persons having firsthand 

19 knowledge of the facts represented, that he is unable to 

20 comply with the standard or portion thereof and a de- 

21 tailed statement of the reasons therefor, 

22 "'(C) a statement of the steps he has taken and will 

23 take (with specific dates) to protect miners against the 

24 hazards covered by the standard, 

25 " (D) a statement of when he expects to be able to 



20-040 O - 78 - 9 



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1 comply with the standard and what steps he has taken 

2 and what steps he will take (with dates specified) to 

3 come into compliance with the standard, and 

4 "(E) a certification that he has informed his em- 

5 ployees of the application by giving a copy thereof to 

6 their authorized representative, posting a statement giv- 

7 ing a summary of the application and specifying where a 
9 copy may be examined at the place or places where no- 
9 tices to employees are normally posted, and by other 

10 appropriate means. 

11 A description of how employees have been informed shall 

12 be contained in the certification. The information to em- 

13 ployees shall also inform them of their right to petition the 

14 Secretary for a hearing. 

15 "(e) Any affected operator may apply to the Secretary 

16 for an order for a variance from a standard promulgated 

17 under this section. Affected miners and their representative 

18 shall be given notice of each such application and an oppor- 

19 tunity to participate in a hearing. The Secretary shall issue 

20 an order if he determines on the record, after opportunity for 

21 an inspection where appropriate and a public hearing, that 

22 the proponent of the variance has demonstrated by a pre- 

23 ponderance of the evidence that the conditions, practices, 

24 means, methods, operations, or processes used or proposed 

25 to be used by an operator will provide employment and 



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1 places of employment to his employees which are as safe 

2 and healthful as those which would prevail if he complied 

3 with the standard. The order so issued shall prescribe the 

4 conditions the operator must maintain, and the practices, 

5 means, methods, operations, and processes which he must 

6 adopt and utilize to the extent they differ from the standard 

7 in question. Such order may be modified or revoked upon 

8 application by an operator, miner, representative of miners 

9 or by the Secretary, in the manner prescribed for its issuance 

10 under this subsection. 

11 "(f) The provisions of subsections (d) and (e) shall not 

12 apply with respect to any standard enacted by title II of this 

13 Act and in effect on the date immediately prior to the effec- 

14 tive date of the Federal Mine Safety and Health Amend- 

15 ments Act of 1976 or to any standard promulgated pursuant 

16 to that title prior to such date. 

17 "(g) Any person who may be adversely affected by a 

18 standard issued under this section may, at any time prior to 

19 the sixtieth day after such standard is promulgated, file a 

20 petition challenging the validity of such standard with the 

21 United States court of appeals for the District of Columbia 

22 circuit or the circuit wherein such person resides or has his 

23 principal place of business, for a judicial review of such 

24 standard. A copy of the petition shall be forthwith trans- 

25 mitted by the clerk of the court to the Secretary. The filing 



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2 of such petition shall not, unless otherwise ordered hy the 

2 court, operate as a stay of the standard. No objection that 

3 has not been urged before the Secretary shall be considered 

4 by the court, unless the failure or neglect to urge such 
- objection shall be excused because of extraordinary circum- 
6 stances. The procedures of this section shall be the exclusive 
rj means of challenging the validity of a standard. 

8 "ADVISOKY COMMITTEES 

9 "Sec. 103. (a) The Secretary may appoint advisor} 
-jq committees to assist him in his standard setting functions 
^2 under section 102(a) of this Act, and to advise him on 

22 other matters relating to safety and health in mines. Each 

23 such advisory committee may include as a member one 

24 or more designees of the Secretary of Health, Education, 

25 and Welfare, the National Bureau of Standards, Department 
2(5 of Commerce, and the National Science Foundation, and 
27 shall include among its members persons qualified by experi- 
ig ence and affiliation to present the viewpoint of operators of 
29 such mines and an equal number of persons similarly quali- 
9Q fled to present the viewpoint of workers in such mines, as 
r>2 well as one or more representatives of mine inspection or 

92 safety agencies of the States. An advisory committee may 

93 also include such other persons as the Secretary may appoint 

24 who are qualified by knowledge and experience to make a 

25 useful contribution to the work of such committee, including 

S. 717- — 3 



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1 one or more representatives of professional organizations of 

2 technicians or professionals specializing in safety or health, 

3 hut the number of persons so appointed to any such advisory 

4 committee shall not exceed the number appointed to such 

5 committee as representatives of Federal and State agencies. 

6 Any meeting of such committee shall be open to the public 

7 and an accurate record shall be kept and made available to 

8 the public. Xo member of such committee (other than rep- 

9 resentatives of operators and miners) shall have an economic 

10 interest in any proposed rule. 

11 "(h) Persons appointed to advisory committees from 

12 private life shall be compensated in the same manner as 

13 consultants or experts under section 3109 of title 5, United 
11 States Code. The Secretary shall pay to any State which 

15 is the employer of a member of such committee reimburse- 

16 ment sufficient to cover the actual costs to the State resulting 
IT from such representatives' membership on such committee. 

18 "inspections, investigations, and keoorokeeping- 

19 "Sec. 104. (a) In order to carry out the purposes of 

20 this Act, the Secretary or the Secretary of Health, Educa- 

21 tion, and Welfare, or an authorized representative of either, 

22 upon presenting appropriate credentials to the owner, oper- 

23 ator, or agent in charge, is authorized— 

24 "(1) to enter without delay any mine subject to 

25 this Act; and 



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1 " (2) to inspect and investigate any mine and all 

2 pertinent conditions, structures, machines, apparatus, de- 

3 vices, equipment, records, and materials therein, and to 

4 consult privately with any such operator, owner, agent, 

5 or miner. In carrying out the requirements of this sec- 

6 tion in each mine, the Secretary shall make inspections 

7 of the entire mine at least tour times a year. Advance 

8 notice of any inspection shall not he given, except that 

9 the Secretary of Health, Education, and Welfare may 

10 give advanced notice of inspections conducted in connec- 

11 tion with or for the purpose of research or technical 

12 assistance. 

-o "(b) In making his investigations of accidents or other 
-,. occurrences relating to health or safety in a mine under 
-.r- this Act, the Secretary may require the attendance and testi- 
ng mony of witnesses and the production of evidence under 
.,- oath. Witnesses shall be paid the same fees and mileage that 
-jo are paid witnesses in the courts of the United States. In 
1Q ease of a contumacy, failure, or refusal of any person to 
9ft obey such an order, any district court of the United States 
<w or the United States courts of any territory or possession, 
22 within the jurisdiction of which such person is found, resides, 
2 o or transacts business, upon the application by the Secre- 
04 tarv > sna ^ nave jurisdiction to issue such person an order 
2 5 requiring such person to appear to produce evidence if, as, 



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1 and when so ordered, and to give testimony relating to 

2 the matter under investigation or in question, and any failure 

3 to obey such order of the court may be punished by said 

4 court as a contempt thereof. 

5 " (c) (1) Each operator shall make, keep and preserve, 
G and make available to the Secretary or the Secretary of 

7 Health, Education, and Welfare, such records regarding his 

8 activities relating to this Act as the Secretary, in coopera- 

9 tion with the Secretary of Health, Education, and Welfare, 
10 may prescribe by regulation as necessary or appropriate 
U for the enforcement of this Act or for developing informa- 

12 tion regarding the causes and prevention of occupational 

13 accidents and illnesses in the mines subject to this Act. In 

14 order to carry out the provisions of this paragraph such 

15 regulations may include provisions requiring operators to 

16 conduct periodic inspections. 

IT "(2) The Secretary, in cooperation with the Secretary 

18 of Health, Education, and Welfare, shall prescribe regulations 

19 requiring operators to maintain accurate records of and to 

20 make periodic reports on, work-related deaths, injuries, and 

21 illnesses other than minor injuries requiring only first aid 

22 treatment and which do not involve medical treatment, loss 

23 of consciousness, restriction of work or motion, or transfer to 

24 another job in the mines subject to this Act. 

25 "(3) The Secretary, in cooperation with the Secretary 



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1 of Health, Education, and Welfare, shall issue regulations 

2 requiring operators to maintain accurate records of employee 

3 exposures to potentially toxic materials or harmful physical 

4 agents which are required to be monitored or measured under 

5 any applicable health and safety standard promulgated under 

6 this Act. Such regulations shall provide miners or their repre- 

7 sentatives with an opportunity to observe such monitoring or 

8 measuring, and to have access to the records thereof. Such 

9 regulations shall also make appropriate provision for each 

10 miner or former miner to have access to such records as will 

11 indicate his own exposure to toxic materials or harmful physi- 

12 cal agents. Each operator shall promptly notify any miner 

13 who has been or is being exposed to toxic materials or harm- 

14 fill physical agents in concentrations or at levels which exceed 

15 those prescribed by an applicable health and safety standard 
1() promulgated under section 102, or mandated under title II, 

17 and shall inform any miner who is being thus exposed of the 

18 corrective action being taken. 

19 "(4) All accidents, including unintentional roof falls 

20 (except in any abandoned panels or in areas which are 

21 inaccessible or unsafe for inspections), shall be investigated 

22 by the operator or his agent to determine the cause and 

23 the means of preventing a recurrence. Records of such acci- 

24 dents, roof falls, and investigations shall be kept and the 

25 information shall be made available to the Secretary or his 



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1 --authorized representative and the appropriate State agency. 

2 Such records shall he open for inspection hy interested 

3 persons. 

4 (d) Any information obtained by the "Secretary, or hy 

5 the Secretary of Health, Education, and Welfare under this 

6 Act shall be obtained in such a manner as to impose a mini- 

7 mum burden upon operators, especially those operating small 

8 business consistent with the underlying purposes of this Act. 

9 Unnecessary duplication of effort in obtaining information 

10 shall be reduced to the maximum extent feasible. 

11 "(e) Subject to regulations issued by the Secretary, a 

12 representative of the operator and a representative au- 

13 thorized by his miners shall be given an opportunity to 

14 accompany the Secretary or his authorized representative 

15 during the physical inspection of 'any mine under sub- 

16 section (a) for the purpose of aiding such inspection. Where 

17 there is no authorized miner representative, the Secretary or 

18 his authorized representative shall consult with a reason- 

19 able number of miners concerning matters of health and 

20 safety in the mine. "Such representative of miners who is 

21 also an employee of the operator shall suffer no loss of pay 

22 as a result of his participation in the physical inspection made 

23 under this subsection. To the extent that the inspector deter- 

24 mines that more than one representative from each party 

25 would further aid the inspection, he can permit each party 



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23 

1 Jo have an equal number of such additional representatives. 

'2 However, only one such representative of miners who is 

3 an employee of the operator shall he entitled to suffer no logs 

4 of pay as a result of such participation under the provisions 

5 of this subsection. Compliance with this subsection shall not 

6 be a jurisdictional prerequisite t<» the enforcement of any pro- 

7 vision of this Act. 

8 "(f) (1) Any miners or representatives of miners who 

9 believe that a violation of a health or safety standard 

10 exists that threatens harm, or that an imminent danger 

11 exists, may request an inspection by giving notice to the 

12 Secretary or his authorized representative of such violation 

13 or danger. Any such notice shall be reduced to writing, shall 
1-1 set forth with reasonable particularity the grounds for the 
15 notice, and shall he signed by the miners or representative 
1° of miners, and a copy shall he provided the operator or his 

17 agent at the time of inspection, except that, upon the request 

18 of the person giving such notice, his name and the names 

19 of individual miners referred to therein shall not appear in 

20 sueh copy or on any record published, released, or made 

21 available pursuant to subsection (g) of this section. If upon 

22 receipt of such notification the Secretary determines there 

23 are reasonable grounds to believe that such violation or dan- 

24 ger exists, he shall make a special, inspection in accordance 

25 with the provisions of this section as soon as practicable, to 



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1 determine if such violation or danger exists. If the Secretary 

2 determines there are no reasonable grounds to believe that a 

3 violation or danger exists he shall notify the miners and 

4 representative of the miners in writing of such determination. 

5 " (2) Prior to or during any inspection of a mine, any 

6 miners or representatives of miners employed in such mine 

7 may notify the Secretary or any representative of the Sec- 

8 retary responsible for conducting the inspection, in writing, 

9 of any violation of this Act or of any imminent danger 

10 which they have reason to believe exists in such mine. The 

11 Secretary shall, by regulation, establish procedures for in- 

12 formal review of any refusal by a representative of the Secre- 

13 tary to issue a citation with respect to any such alleged 

14 violation or order with respect to such danger and shall 

15 furnish the miners or representative of miners requesting 

16 such review a written statement of the reasons for the Sec- 

17 retary's final disposition of the case. 

18 " (g) (1) The Secretary and Secretary of Health, Edu- 

19 cation, and Welfare are authorized to compile, analyze, and 

20 publish, either in summary or detailed form, all reports or 

21 information obtained under this section. 

22 " (2) The Secretary and the Secretary of Health, Edu- 

23 cation, and Welfare shall each prescribe such rules and regu- 

24 lations as they may deem necessary to carry out their respon- 



134 



25 

1 sibilities under this Act, including rules and regulations 

2 dealing with the in&pection of mines subject to this Act. 

3 " (h) Whenever the Secretary finds that a mine liberates 

4 excessive quantities ef methane or other explosive gases dur- 

5 ing its operations, or that a methane or other gas ignition or 

6 explosion has occurred in such mine which resulted in death 

7 or serious injury at any time during the previous, five years, or 

8 that there exists in such mine some other especially hazardous 

9 Condition, be shall provide a minimum of one spot inspection 

10 by his authorized representative of all or part of such mine 

11 during every live working days at irregular intervals. 

12 For purposes of this Bubsection, liberation of excessive quan- 

13 tities of methane or other explosive gases shall mean liberation 

14 of more than one million cubic feet of methane or other 

15 explosive gases during a twenty-four hour period,: Provided, 

16 fiow ever, That when the Secretary finds that a mine liberates 
1^ more than five hundred thousand cubic feet of methane or 

18 other explosive gases during a twenty-four hour period, 

19 he shall provide a minimum of one spot inspection by his 

20 authorized representative of all or part of such mine every 

21 ten working days at irregular intervals: Provided further, 

22 That when the Secretary finds that a mine liberates more 

23 than two hundred thousand cubic feet of methane or other 

24 explosive gases during a twenty-four hour period, he shall 

S. 717 4 



135 



26 

1 provide a minimum of one spot inspection by his authorized 

2 representative of all or part of such mine every fifteen work- 

3 ing days at irregular intervals. 

4 " (i) In the event of any accident (whether or not 

5 resulting in an injury or death) occurring in a mine, the 
q operator shall promptly notify the Secretary thereof and 

7 shall take appropriate measures to prevent the destruction 

8 of any evidence which would assist in investigating the 

9 cause or causes thereof. In the event of any accident oc- 

10 curring in a mine where rescue and recovery work is 

11 necessary, the Secretary or an authorized representative of 

12 the Secretary shall take whatever action he deems appro- 

13 priate to protect the life of any person, and he may, if he 

14 deems it appropriate, supervise and direct the rescue and 

15 recovery activity in such mine. 

16 " (j) In the event of any accident occurring in a mine, 

17 an authorized representative of the Secretary, when present, 

18 may issue such orders as he deems appropriate to insure 

19 the safety of any person in the mine, and the operator of 

20 such mine shall obtain the approval of such representative, 

21 in consultation with appropriate State representatives, when 

22 feasible, of any plan to recover any person in the mine or 

23 to recover the mine or return affected areas of the mine 

24 to normal. 



136 



27 

1 "CITATIONS AND OKDEKS 

2 "Sec. 1U5. (a) (1) If, upon inspection or investiga- 

3 tion, the Secretary or his authorized representative believes 

4 that an operator of a mine subject to this Act has violated 

5 this Act, or any rule, order, or regulation promulgated 

6 pursuant to this Act, he shall, with reasonable promptness, 

7 issue a citation to the operator. Each citation shall be in 

8 writing and shall describe with particularity the nature of 

9 the violation, including a reference to the provision of the 

10 Act, standard, rule, regulation, or order alleged to have 

11 been violated. In addition, the citation shall fix a reason- 
1U able time for the abatement of the violation. 

13 " (2) If a citation under section 105 (a) ( 1 ) is issued for 

14 a violation which the Secretary or his authorized representa- 

15 tive believes to have been willfully committed, or committed 

16 with gross negligence, and to have subjected a miner or 
1? miners to an imminent danger, the Secretary or his author- 
18 ized representative shall include in the citation a charge that 
1£> the violation was willfully committed, or committed with 

20 gross negligence, and that it subjected a miner or miners to 

21 an imminent danger, with a specific description of the danger 

22 or dangers involved. 

23 "(b) If upon any followup inspection of a mine, an 

24 authorized representative of the Secretary finds (1) that a 

25 violation described in a citation issued pursuant to subsection 



137 



28 

1 (a) has not been totally abated within the period of time 

2 as originally fixed therein or as subsequently extended, and 

3 (2) that the period of time for the abatement should not be 

4 further extended, he shall find the extent of the area affected 

5 by the violation and shall promptly issue an order requiring 

6 the operator of such mine or his agent to immediately cause 

7 all persons to be withdrawn from, and to be prohibited from 

8 entering such area until an authorized representative of the 

9 Secretary determines that such violation has been abated, 

10 except the following persons : 

11 " ( 1 ) Any person whose presence in such area is 

12 necessary, in the judgment of the operator of the mine, 

13 or an authorized representative of the Secretary, to 

14 eliminate the danger described in order; 

15 "(2) Any public official whose official duties re- 

16 quire him to enter such area; or 

n " (3) Any legal or technical consultant, or any rep- 

1S resentative of the employees of the mine, who is a cer- 

19 tified person qualified to make mine examinations, or is 

20 accompanied by such a person, and whose presence in 

21 such area is necessary, in the judgment of the operator 

22 of the mine or an authorized representative of the Sec- 

23 retary, for the proper investigation of the conditions 

24 described in the order. 

2 ^ " ( c ) (1) In the case of a violation of any safety or 



138 



29 

1 health standard which is of such nature as could significantly 

2 and substantially contribute to the cause and effect of a mine 

3 safety or health hazard, and which is caused by an unwar- 

4 ranted failure of such operator to comply with such safety 

5 or health standards, the citation shall include a statement to 

6 that effect. If, during the same inspection or any subsequent 

7 inspection of such mine within ninety days after the issuance 

8 of such citation, an authorized representative of the Secretary 

9 finds another violation of any safety or health standard and 

10 finds such violation to be also caused by an unwarranted 

11 failure of such operator to so comply, he shall forthwith issue 

12 an order requiring the operator to cause all persons in the 

13 area affected by such violations, except those persons referred 

14 to in subsection (b) of this section, to be withdrawn from, 

15 and to be prohibited from entering, such area until an author- 

16 ized representative of the Secretary determines that such 

17 violation has been abated. 

18 "(2) If a withdrawal order with respect to any area 

19 in a mine has been issued pursuant to paragraph ( 1 ) of this 

20 subsection, a withdrawal order shall promptly be issued by 

21 an authorized representative of the Secretary who finds upon 

22 any subsequent inspection the existence in the mine of 

23 other unwarranted violations until such time as an inspec- 

24 tion of such mine discloses no such violations. Following an 

25 inspection of the mine which discloses no unwarranted viola- 



139 



30 

1 tions, the provisions of paragraph (1) of this subsection 

2 shall again be applicable to that mine. 

3 "(d) During the abatement period for a violation of the 

4 applicable limit on the concentration of respirable dust, the 

5 operator of the mine shall cause samples described in section 

6 202(a) of this Act to be taken of the affected area during 

7 each production shift. 

8 "As soon as possible after an order relating to failure to 

9 abate excessive dust concentrations is issued, the Secre- 

10 tary, upon request of the operator, shall dispatch to the mine 

11 involved a person or team of persons, to the extent such 

12 persons are available, who are knowledgeable in the methods 

13 and means of controlling and reducing respirable dust. Such 

14 person or team of persons shall remain at the mine involved 

15 for such time as they shall deem appropriate to assist the 

16 operator in reducing respirable dust concentration. While 

17 at the mine, such persons may require the operator to take 

18 such actions as they deem appropriate to insure the health 

19 of any person in the mine. 

20 "(e) (1) If, upon any inspection or investigation pur- 
2i suant to section 104 of this Act, the Secretary or an author- 

22 ized representative shall find employed at a mine a miner 

23 who has not received the requisite safety training under sec- 

24 tion 317A of this Act, the Secretary or an authorized repre- 

25 sentative shall issue an order under this section which declare 



20-040 O - 78 - 10 



140 



31 

1 such miner to be a hazard to himself and to others, and 

2 requiring that such miner be immediately withdrawn from 

3 the mine, and be prohibited from entering the mine until an 

4 authorized representative of the Secretary determines that 

5 such miner has received the training required by section 
(j 317x\ of this Act. 

7 " (2) No miner who is ordered withdrawn from a mine 

8 under paragraph ( 1 ) of this subsection shall be discharged 
or otherwise discriminated against because of such order; 

10 and no miner who is ordered withdrawn from a mine under 

11 paragraph (1) of this subsection shall suffer a loss of com- 

12 pensation during the period necessary for such miner to 

13 receive such training and for an authorized representative 

14 of the Secretary to determine that such miner has received 

15 the requisite training. 

16 " (f) Each citation or order issued under this section, or 

17 a copy or copies thereof, shall be prominently posted in 

18 accordance with section 1 10 of this Act, and as prescribed in 

19 regulations issued by the Secretary. 

20 " (g) Xo citation may be issued under this section after 

21 the expiration of six months following the occurrence of any 

22 violation. 

23 "(h) Any order issued under subsection (b) or (c) 

24 shall remain in effect until revoked by the Secretary or modi- 



141 



32 

1 fied or vacated by the Commission or the courts pursuant to 

2 section 106(c) or 107(a). 

3 "rEOCEDTJEE FOE EXFOECEMEXT 

4 "Sec. 106. (a) If, after an inspection or investigation 

5 the Secretary issues a citation or order under section 105, 

6 he shall, within a reasonable time after the termination of 

7 such inspection or investigation, notify the operator by cer- 

8 tified mail of the civil penalty proposed to be assessed under 

9 section 111 (a) for the violation cited and that the operator 

10 has fifteen working days within which to notify the Secretary 

11 that he wishes to contest the citation or proposed assessment 

12 of penalty. If the citation contains a charge under section 

13 105(a) (2), the Secretary's notification under the subsec- 

14 tion shall include a proposed civil penalty closure order 

15 under section 111 (d) in addition to the proposed civil 

16 monetary penalty. If, within fifteen working days from the 

17 receipt of the notice issued by the Secretary, the operator 

18 fails to notify the Secretary that he intends to contest the 

19 citation or the proposed penalty or penalties, and no notice 
2Q is filed by any employee or representative of employees 
2i under subsection (c) of this section within such time, the 

22 citation and the penalty or penalties, as proposed, shall be 

23 deemed a final order of the Commission and not subject to 

24 review by any court or agency. Refusal by the operator or 

25 his agent to accept certified mail containing a notice under 



142 



33 

1 this subsection shall constitute receipt thereof within the 

2 meaning of this subsection. 

3 "(b) If the Secretary has reason to believe that an oper- 

4 ator has failed to correct a violation for which a citation has 

5 been issued within the period permitted lor its correction 

6 (which period shall not end until the entry of a final order by 

7 the Commission, in the case of any review proceedings under 

8 this section initiated by the operator wherein the Commission 

9 orders, after an expedited hearing, the suspension of the 

10 abatement requirements of the citation alter determining that 

11 the operator will Buffer irreparable loss or damage from the 

12 application of those requirements) , the Secretary shall notify 

13 the operator by certified mail of such failure and of the 

14 penalty proposed to be «l under section 111 by reason 

15 of such failure, and that the operator has fifteen working 

16 days within which to notify the Secretary that he wishes to 

17 contest the Secretary's notification or the proposed assessment 

18 of penalty. If, within fifteen working days from the receipt of 

19 notification issued by the Secretary, the operator fails to 

20 notify the Secretary that he intends to contest the notification 

21 or proposed assessment of penalty, the notification and assess- 

22 ment, as proposed, shall be deemed a final order of the Com- 

23 mission and not subject to review 7 by any court or agency. 

24 Refusal by the operator or his agent to accept certified mail 

25 containing a notification issued under this subsection shall 

S. 717 5 



143 



34 

1 constitute receipt thereof within the meaning of this 

2 subsection. 

3 "(c) (1) No person shall discharge or in any manner 

4 discriminate against or interfere with the exercise of the 

5 statutory rights of any mine employee or applicant for era- 

6 ployment subject to this Act because such employee has filed 

7 or made a complaint under or related to this Act, including 

8 a complaint notifying the operator or the operator's agent, 

9 or the employee's labor or health and safety representative 

10 of an alleged danger or safety or health violation in the mine, 

11 or because such employee is the subject of medical evalua- 

12 tions and potential transfer under a standard published pur- 

13 suant to section 102(a) of this Act, or because such 

14 employee has instituted or caused to be instituted any pro- 

15 ceeding under or related to this Act or has testified or is 

16 about to testify in any such proceeding, or because of the 

17 exercise by such employee on behalf of himself or others of 

18 any statutory right afforded by this Act. 

19 " (2) Any mine employee or applicant for employment 

20 who believes that he has been discharged, interfered with, 

21 or otherwise discriminated against by any person in viola- 

22 tion of this subsection may, within thirty days after such 

23 violation occurs, file a complaint with the Secretary alleging 
^ such discrimination. Upon receipt of such complaint, the 
25 Secretary shall cause such investigation to be made as he 



144 



35 

1 deems appropriate. If upon such investigation, the Secre- 

2 tary determines that the provisions of this subsection have 

3 been violated, he shall immediately file a complaint with the 

4 Commission, with service upon the alleged violator and the 

5 mine employee or applicant for employment, alleging such 

6 discrimination or interference and proposing an order grant- 

7 ing appropriate relief. The Commission shall afford an op- 

8 portunity for a hearing (in accordance with section 554 of 

9 title 5, United States Code, but without regard to subsection 

10 (a) (3) of such section) and thereafter shall issue an order. 

11 based upon findings of fact, affirming, modifying, or vacating 

12 the Secretary's proposed order, or directing other appropri- 

13 ate relief; and such order shall become final thirty days after 

14 its issuance. The Commission shall have authority in such 

15 proceedings to require a person committing a violation of 

16 this subsection to take such affirmative action to abate the 

17 violation as the Commission deems appropriate, including, 

18 but not limited to, the rehiring or reinstatement of the 

19 employee to his former position with back pay and interest. 

20 The complaining employee or applicant may present addi- 

21 tional evidence on his own behalf during any hearing held 

22 pursuant to this paragraph. 

23 "(3) Within ninety days of the receipt of a complaint 

24 filed under paragraph (2) of this subsection, the Secretary 

25 shall notify the mine employee or applicant for employment, 






145 

36 

1 in writing, of his determination whether a violation has oc- 

2 curred. If the Secretary, upon investigation, determines that 

3 the provisions of this subsection have not been violated, the 

4 complainant shall have the right, within thirty days of notice 

5 of the Secretary's determination, to file an action in his own 

6 behalf before the Commission, charging discrimination or 

7 interference in violation of paragraph ( 1 ) of this subsection. 

8 The Commission shall afford an opportunity for a hearing 

9 (in accordance with section 554 of title 5, United States 

10 Code, but without regard to subsection (a) (3) of such sec- 

11 tion), and thereafter shall issue an order, based upon find- 

12 ings of fact, dismissing or sustaining the complainant's 

13 charges and, if the charges are sustained, granting such relief 

14 as it deems appropriate, including, but not limited to, an 

15 order requiring the rehiring or reinstatement of the mine 

16 employee or applicant for employment to his former position 

17 with back pay and interest. Such order shall become final 

18 thirty days after its issuance. Whenever an order is issued 

19 sustaining the employee's charges under this paragraph, a 

20 sum equal to the aggregate amount of all costs and expenses 
2i (including attorney's fees) as determined by the Commis- 

22 sion to have been reasonably incurred by the mine employee 

23 or applicant for employment for, or in connection with, the 

24 institution and prosecution of such proceedings shall be 

25 assessed against the person committing such violation. Pro- 



146 



37 

1 ceedings under this section shall he expedited by the Secre- 

2 tary and the Commission. Any order issued by the Coinmis- 

3 sion under this paragraph shall be subject to judicial review 
-1 in accordance with section 107 of this Act. Violations by any 

5 person of paragraph (1) of this subsection shall he subject 

6 to the provisions of section 10J) and 111 (a) of this title.". 

7 u (d) If, within fifteen working days of receipt thereof, 

8 an operator of a mine notilio the Secretary that he intends to 

9 contest tin issuance or modification of an order issued under 

10 section 105, or a notification issued under subsection (a) or 

11 (b) of this section, or the reasonableness of the length of 

12 abatement time fixed in a citation or modification thereof 

13 issued under section 105, or any miner or representative of 

14 miners notifies tin- Secretary of an intention to contest the 
13 issuance, modification, or termination of any order issued 
1G under section 10.*). or the reasonableness of the length of time 

17 set for abatement by a citation or modification thereof issued 

18 under section 105. the Secretary shall immediately advise 

19 the Commissi©*) of such notification, and the Commission 

20 shall afford an opportunity for a hearing (in accordance with 

21 section 55-1 of title 5, United States Code, but without regard 

22 to subsection (a) (8] of such section), and thereafter shall 

23 issue an order, based on findings of fact, afhrming, modifying, 

24 or vacating the Secretary's citation, order, or proposed pen- 

25 alty, or directing other appropriate relief; such order shall 



147 



38 

1 become final thirty days after its issuance. The rules of proce- 

2 dure prescribed by the Commission shall provide affected 

3 miners or representatives of affected miners an opportunity 

4 to participate as parties to hearings under this section. The 

5 Commission shall take whatever action is necessary to 

6 expedite proceedings for hearing appeals of orders issued 

7 under section 105. The Commission may not grant temporary 

8 relief from the issuance of any order under subsection 105 (c) 

9 of this Act. 

10 "judicial eeview 

11 "Sec. 107. (a) Any person adversely affected or ag- 

12 grieved by an order of the Commission issued under this Act 

13 may obtain a review of such order in any United States court 

14 of appeals for the circuit in which the violation is alleged to 

15 have occurred or where the operator has its principal office, 

16 or in the United States Court of Appeals for the District 

17 of Columbia Circuit, by filing in such court within thirty 

18 days following the issuance of such order a written petition 

19 praying that the order be modified or set aside. A copy of 

20 such petition shall be forthwith transmitted by the clerk of 

21 the court to the Commission and to the other parties, and 

22 thereupon the Commission shall file in the court the record 

23 in the proceeding as provided in section 2112 of title 28, 

24 United States Code. Upon such riling, the court shall have 

25 exclusive jurisdiction of the proceeding and of the question 



148 



39 

1 determined therein, and shall have power to grant such tem- 

2 porary relief or restraining order as it deems just and proper, 

3 and to make and enter upon the pleadings, testimony, and 

4 proceedings set forth in such record a decree affirming, modi- 

5 fying, or setting aside, in whole or in part, the order of the 

6 Commission and enforcing the same to the extent that such 

7 order is affirmed or modified. The commencement of proceed- 

8 ings under this subsection shall not, unless ordered by the 

* 

9 court, operate as a stay of the order of the Commission. No 

10 objection that has not been urged before the Commission 

11 shall be considered by the court, unless the failure or neglect 

12 to urge such objection shall be excused because of extraordi- 
lo nary circumstances. The findings of the Commission with re- 

14 spect to questions of fact, if supported by substantial evidence 

15 on the record considered as a whole, shall be conclusive. If 

16 any party shall apply to the court for leave to adduce addi- 

17 tional evidence and shall show to the satisfaction of the court 

18 that such additional evidence is material and that there were 

19 reasonable grounds for the failure to adduce such evidence in 

20 the hearing before the Commission, the court may order such 

21 additional evidence to be taken before the Commission and 

22 to be made a part of the record. The Commission may modify 

23 its findings as to the facts, or make new findings, by reason 

24 of additional evidence so taken and filed, and it shall file 

25 such modified or new findings, which findings such respect 



149 



40 

1 to question of fact, if supported by substantial evidence on 

2 die record considered as a whole, shall be conclusive. The 

3 Commission may modify or set aside its original order 

4 by reason of such modified or new findings of fact. Upon 

5 the filing of the record with it. after such remand proceedings, 

6 the jurisdiction of the court shall be exclusive and its judg- 

7 ment and -hall be final, except that the same shall be 
S subject to review by the Supreme Court of the United States. 
9 as provic lion 1254 of title 28. United States Code. 

10 Petitions filed under this subsection shall be heard expedi- 

11 tiously. 

12 " (b) The Secretary may also obtain review or enforce- 

13 ment of any final order of the Commission by filing a 

14 petition for such relief in the United States court of appeals 

15 for the circuit in which the alleged violation occurred or 

16 in which the operator has its principal office or in the Court 
IT of Appeal- for the District of Columbia Circuit, and the pro- 

18 vision of subsection (a) shall govern such proceedings to 

19 the extent applicable. If no petition for review, as provided 

20 in subsection (a) , is filed within thirty days after issuance 

21 of the Commissioner's order, the Commission's findings of 

22 fact and order shall be conclusive in connection with any 

23 petition for enforcement which is filed by the Secretary 

24 after the expiration of such thirty-day period. In any such 

25 case, as well as in the case of a noncontested citation or 



150 



41 

1 notification by the Secretary which has become a final order 

2 of the Commission under subsection (a) or (b) of section 

3 106, the clerk of the court, unless otherwise ordered by the 

4 court, shall forthwith enter a decree enforcing the order and 

5 shall transmit a copy of such decree to the Secretary and the 

6 operator named in the petition. In any contempt proceeding 

7 brought to enforce a decree of a court of appeals entered 

8 pursuant to this subsection or subsection (a), the court 

9 of appeals may assess the penalties provided in section 

10 J 11, in addition to invoking any oilier available remedies. 

11 "PBOCBDUBES TO COUNTERACT DANGBBOUS CONDITIONS 

12 "Sec. 108. (a) If, upon any inspection or investigation 

13 of a mine which is subject to this Act. .in authorized rcprc- 

14 sentative of the Secretary finds that conditions of practices 

15 in such mine are such that an imminent danger exists, such 

16 representative shall determine the extent of the area of such 

17 mine throughout which the danger exists, and issue an order 

18 requiring the operator of such mine to cause all persons, 

19 except those referred to in section 105 (b) , to be withdrawn 

20 from, and to be prohibited from entering, such area until 

21 an authorized representative of the Secretary determines that 

22 such imminent danger no longer exists. The issuance of an 

23 order under this subsection shall not preclude the issuance 

24 of a citation under section -105 or the proposing of a penalty 

25 under section 111. 



151 



42 

1 "(b) (1) If, upon any inspection or investigation of a 

2 mine, an authorized representative of the Secretary finds 

3 (A) that potentially dangerous conditions exist therein 

4 which have not yet resulted in an imminent danger, (B) 

5 that such conditions cannot be effectively abated through 

6 the use of existing technology, and (C) that reasonable 

7 assurance cannot be provided that the continuance of mining 

8 operations under such conditions will not result in an im- 

9 minent danger, he shall determine the area throughout which 

10 such conditions exist, and thereupon issue a notice to the 

11 operator of the mine or his agent of such conditions, and shall 

12 file a copy thereof, incorporating his findings therein, with 

13 the Secretary and with the representatives of the miners of 

14 such mine. Upon receipt of such copy, the Secretary shall 

15 cause such further investigation to be made as he deems 

16 appropriate, including an opportunity for the operator or a 

17 representative of the miners to present information relating 

18 to such notice. 

19 " (2) Upon the conclusion of such investigation and an 

20 opportunity for a public hearing upon request by any inter- 

21 ested party, the Secretary shall make findings of fact, and 

22 shall, by decision incorporating such findings therein, either 

23 cancel the notice issued under this subsection or issue an 

24 order requiring the operator of such mine to cause all persons 

25 in the area affected, except those persons referred to in sec- 



152 



43 

1 tion 105 (b) , to be withdrawn from, and be prohibited from 

2 entering, such area until the Secretary, after a public hearing 

3 affording all interested persons an opportunity to present 

4 their views, determines that such conditions have been 

5 abated. Any hearing under this paragraph shall be of record 

6 and shall be subject to section 554 of title 5 of the United 

7 States Code but without regard to subsection (a) (3). 

8 " (c) Findings and orders issued pursuant to subsection 

9 (a) of this section shall contain a detailed description of the 

10 conditions or practices which cause and constitute a situation 

11 of imminent danger, and all orders issued pursuant to this 

12 section shall contain a description of the area of the mine 
1'6 throughout which persons must be withdrawn and prohibited. 

14 " (d) Each finding made and order issued under this 

15 section shall be given promptly to the operator of the mine 

16 to which it pertains by the person making such finding or 

17 order, and all of such findings and orders shall be in writing, 

18 and shall be signed by the person making them. Any order 

19 issued pursuant to subsection (a) or (b) may be annulled, 

20 canceled, or revised by an authorized representative of the 
2i Secretary. Any order issued under subsection (a) or (b) 

22 shall remain in effect until revoked by the Secretary or 

23 modified or vacated by the Commission, or the courts pur- 

24 suant to section 107 (a) or 108 (e) . 

25 "(e) (1) Any operator notified of an order under this 



153 



44 

1 section or any representative of miners notified of the issu- 

2 ance, modification, or termination of such an order may apply 

3 to the Commission within ten days of such notification for 

4 annulment or revision of such order. The Commission shall 

5 forthwith afford an opportunity for a hearing (in accordance 

6 with section 554 of title 5, United States Code, hut without 

7 regard to subsection (a) (3) of such section) and thereafter 
S shall issue an order, based upon findings of fact, vacating, 
9 affirming, modifying, or terminating the Secretary's order. 

10 The Commission may not grant temporary relief from the 

11 issuance of any order under subsection (a) of this section. 

12 "(2) The Commission shall take whatever action is 

13 necessary to expedite proceedings under this subsection. 

14 "injunctions 

15 "Sec. 109. (a) (1) The Secretary may institute a civil 

16 action for relief, including a permanent or temporary injunc- 

17 tion, restraining order, or any other appropriate order in the 

18 district court of the United States for the district in which a 

19 mine is located or in which the operator of such mine has 

20 his principal office, whenever such operator or his agent 

21 (a) violates or fails or refuses to comply with any order or 

22 decision issued under this Act, or (b) interferes with, hin- 

23 ders, or delays the Secretary or his authorized representative, 

24 or the Secretary of Health, Education, and Welfare or his 

25 authorized representative, in carrying out the provisions of 



154 



45 

1 the Act. <»r (o) refuses to admit such representatives to the 

2 mine, or (d) refuses to permit the inspection of the mine, or 

3 the investigation ol an accident or occupational disease oc- 

4 curring in. or connected with, such mine, or (c) refuses to 

5 furnish any information or report requested hy the Secretary 

6 Of the Secretary of Health. Education, and Welfare in lur- 

7 therance of the provisions of this Act. <>r (t) refuses to |>er- 

8 iuit access to, and copying of, such records a-^ the Secretary 

9 or the Secretary of Health, Education, and Welfare detor- 

10 mines necessary in carrying out the provisions <»t this Act. 

11 "(2) The Secretary may institute a civil action for 

12 relief including permanent or temporary injunction, re- 

13 Btraining order, or any other appropriate order in the 

14 district court of the United Statt- lor the district in which 
■O the mine is located or in which the operator of such mine 
16 has his principal office whenever the Secretary believes that 
IT the operator of a mine is engaged in a pattern of violation 
1® of the health and safety standards of this Act, which in the 
1^ judgment of the Secretary constitutes a continuing hazard 

20 to the health or safety of miners. 

21 "(b) In any action brought under subsection (a) of this 

22 section, the court shall have jurisdiction to provide such relief 

23 as may be appropriate. In the case of an action under sub- 
^ section (a) (2) , the court shall in its order require such as- 
25 surance or affirmative steps as it deems necessary to assure 



155 



46 

1 itself that the protection afforded to miners under this Act 

2 shall be provided by the operator. Temporary restraining 

3 orders shall be issued in accordance with rule 65 of the Fed- 

4 eral Eules of Civil Procedure, as amended, except that the 

5 time limit in such orders, when issued without notice, shall 

6 be seven days from the date of entry. Except as otherwise 

7 provided herein, any relief granted by the court to enforce 

8 an order under clause (a) of this section shall continue in 

9 effect until the completion or final termination of all proceed- 

10 ings for review of such order under this title, unless, prior 

11 thereto, the district court granting such relief sets it aside or 

12 modifies it. In any action instituted under this section to en- 

13 force an order or decision issued by the Commission or the 

14 Secretary after a public hearing in accordance with section 

15 554 of title 5 of the United States Code, the findings of the 

16 Commission or the Secretary, as the case may be, if sup- 

17 ported by substantial evidence on the record considered as 

18 a whole, shall be conclusive. 

19 "posting of notices, oedees, and decisions 

20 "Sec. 110 (a) At each mine subject to this Act there 

21 shall be maintained an office with a conspicuous sign desig- 

22 nating it as the office of the mine, and a bulletin board at 

23 such office or at some conspicuous place near an entrance 

24 of the mine, in such manner that notices, orders, citations, 

25 and decisions required by law or regulation to be posted on 



20-040 O - 78 - 11 



156 



47 

1 the mine bulletin board may be posted thereon, be easily 

2 visible to all persons desiring to read them, and be protected 

3 against damage by weather and against unauthorized re- 

4 moval. A copy of any notice, order, citation, or decision re- 

5 quired by this Act to be given to an operator shall be de- 

6 livered to the office of the affected mine, and a copy shall 

7 be immediately posted on the bulletin board of such mine 

8 by the operator or his agent for not less than thirty days. 

9 "(b) The Secretary shall (i) cause a copy of any notice, 

10 order, citation, or decision required by this Act to be given 

11 to an operator to be mailed immediately to a representative 

12 of the miners in the affected mine, and (ii) cause a copy 

13 thereof to be mailed to the public official or agency of the 

14 State charged with administering State laws, if any, relating 

15 to health or safety in such mine. Such notice, order, citation, 

16 or decision shall be available for public inspection. 

17 " (c) In order to insure prompt compliance with any 

18 notice, order, citation, or decision issued under this Act, the 

19 authorized representative of the Secretary may deliver such 

20 notice, order, citation, or decision to an agent of the operator, 

21 and such agent shall immediately take appropriate measures 

22 to insure compliance with such notice, order, citation, or 

23 decision. 

24 " (d) Each operator of a mine subject to this Act shall 

25 file with the Secretary the name and address of such mine 



157 



48 

1 and the name and address of the person who controls or 

2 operates the mine. Any revisions in such names or addresses 

3 shall he promptly filed with the Secretary. Each operator 

4 of a mine subject to this Act shall designate a responsible 

5 official at such mine as the principal officer in charge of 
G health and safety at such mine, and such official shall receive 

7 a copy of any notice, order, citation, or decision issued 

8 under this Act affecting such mine. In any case, where the 

9 mine is subject to the control of any person not directly 

10 involved in the daily operations of the mine, there shall 

11 be filed with the Secretary the name and address of such 

12 person and the name and address of a principal official of 

13 such person who shall have overall responsibility for the 

14 conduct of an effective health and safety program at any 

15 mine subject to the control of such person, and such official 

16 shall receive a copy of any notice, order, citation, or de- 
1^ cision issued affecting any such mine. The mere designation 
18 of a health and safety official under this subsection shall not 
1^ be construed as making such official subject to any penalty 
20 under this Act. 

2:1 "penalties 

22 "Sec. 111. (a) The operator of a mine in which occurs 

2 ^ a violation of a provision of this Act or a safety or health 

2 ^ standard prescribed by or under this Act, or any rule, order, 

2 ^ or regulation promulgated pursuant to this Act, shall be 



158 



49 

1 assessed a civil penalty of not more than $10,000 for each 

2 such violation. 

3 "(b) Any operator who fails to correct a violation for 

4 which a citation has been issued under section 105 (a) within 

5 the period permitted for its correction (which period shall 

6 not end until the entry of a final order by the Commission, 

7 in the case of any review proceedings under section 106 

8 initiated by the operator wherein the Commission orders, 

9 after an expedited hearing, the suspension of the abatement 

10 requirements of the citation after determining that the oper- 

11 ator will suffer Irreparable loss or damage .from the applica- 

12 tion of those requirements, or until the entry of an order of 

13 the court, in the case of any review proceedings under sec- 

14 tion 107 initiated by the operator wherein the court orders 

15 the suspension of the abatement requirements of the cita- 

16 tion), may be assessed a civil penalty of not more than 

17 $1,000 for each day during which such failure or violation 

18 continues. 

19 "(c) Whenever a corporate operator violates a provision 

20 of this Act or a safety or health standard prescribed by or 

21 under this Act, or any rule, order, or regulation promulgated 

22 pursuant to this Act, any director, officer, or agent of such 

23 corporation who knowingly authorized, ordered, or carried 

24 out such violation shall be subject to the same civil penalties, 



159 



50 

1 fines, and imprisonment that may be imposed upon a person 

2 under subsection (a), (b), (e) , (f),or (g) of this section. 

3 "(d) Any operator who willfully, or with gross negli- 

4 gence, violates a provision of this Act or a safety or health 

5 standard prescribed by or under this Act, or any rule, order, 

6 or regulation promulgated pursuant to this Act, and thereby 

7 causes a miner or miners to be subjected to imminent danger, 

8 shall be subject to a civil penalty closure order by the Com- 

9 mission, which order shall: (i) order the mine closed for a 

10 specified period not to exceed thirty working days, (ii) pro- 

11 vide that the mine may not be reopened after such period 

12 except upon a subsequent order and finding by the Commis- 

13 sion that no unabated safety or health violations exist at such 

14 mine (except violations for which the period for abatement 

15 has not expired) , and (iii) provide that during the period of 

16 closure the operator shall pay the miners at their regular 

17 hourly rates for the hours they would have worked had the 

18 mine not been ordered closed, except any miner or miners 

19 found by the Commission to have willfully or with gross 

20 nefflisence contributed to the violation or violations which 

21 gave rise to the closure order. 

22 "(e) Any operator who willfully violates a provision of 

23 this Act or a safety or health standard prescribed by or under 

24 this Act, or any rule, order, or regulation promulgated pur- 

25 SU ant to this Act, shall, upon conviction, be punished by a 



160 



51 

1 fine of not more than $25,000 or by imprisonment for not 

2 more than one year, or by both ; except that if the conviction 

3 is for a violation committed after a first conviction of such 

4 person for any violation of this Act, punishment shall be a 

5 fine of not more than $50,000 or imprisonment for not more 

6 than five years, or both. 

7 "(f) Any person who gives advance notice of any 

8 inspection to be conducted under this Act shall, upon convic- 

9 tion, be punished by a fine of not more than $1,000 or by 

10 imprisonment for not more than six months, or by both. 

11 " (g) Whoever knowingly makes any false statement, 

12 representation, or certification in any application, record, 

13 report, plan, or other document filed or required to be main- 

14 tained pursuant to this Act shall, upon conviction, be 

15 punished by a fine of not more than $10,000, or by imprison- 

16 ment for not more than six months, or by both. 

17 "(h) Any operator who violates any of the posting re- 

18 quirements, as prescribed under the provisions of this Act, 

19 shall be assessed a civil penalty of up to $10,000 for each 

20 violation. 

21 "(i) Any miner who willfully violates the mandatory 

22 safety standards relating to smoking or the carrying of 

23 smoking materials, matches, or lighters shall be subject to a 

24 civil penalty assessed by the Commission of not more than 

25 $250 for each occurrence of such violation. 



161 



52 

1 "(j) Whoever knowingly distributes, sells, offers for 

2 sale, introduces, or delivers in commerce any equipment for 

3 use in a mine, including, but not limited to, components 

4 and accessories of such equipment, which is represented as 

5 complying with the provisions of this Act, or with any spec- 

6 ification or regulation of the Secretary applicable to such 

7 equipment, and which does not so comply, shall, upon 

8 conviction, be punished by a fine of not more than $25,000 

9 or by imprisonment for not more than one year, or by both. 

10 " (k) The Commission shall have authority to access 

11 all civil penalties and to issue all civil penalty closure orders 

12 provided in this Act. In assessing civil monetary penalties, 

13 the Commission shall give due consideration to the gravity 
■*■"* of the violation, the good faith of the person charged, the 

history of previous violations, and the appropriateness of the 
penalty with respect to the size of the business of any mine 

17 

operator being charged: Provided, That, in proposing civil 

-to 

penalties under this Act, the Secretary may rely upon a sum- 

19 mary review of the information available to him and shall 

not be required to make findings of fact concerning the above 

factors. 
22 



" (1.) Civil penalties owed under this Act shall be paid 
be Secretar} r for deposit into the Treasu 

94- 

States and shall accrue to the United States. 



to the Secretar} r for deposit into the Treasury of the United 



162 



53 

1 " (m) This section shall not be applicable with respect 

2 to title IV of this Act. 

3 "entitlement of miners 

4 "Sec. 112. If a mine or area of a mine is closed by 

5 an order issued under section 104, section 105, or section 

6 108 of this title, all miners working during the shift when 

7 such order was issued who are idled by such order shall be 

8 entitled, regardless of the result of any review of such order, 

9 to full compensation by the operator at their regular rates of 

10 pay for the period they are idled, but for not more than the 

11 balance of such shift. If such order is not terminated prior 
V2 to the next working shift, all miners on that shift who are 
13 idled by such order shall be entitled to full compensation by 
^ the operator at their regular rates of pay for the period they 
4f are idled, but for not more than four hours of such shift. If a 
16 m ine or area of a mine is closed by an order issued under 
n section 105 or section 108 of this title for a failure of the 
!8 operator to comply with any health or safety standard, all 

19 miners who are idled due to such order shall be fully com- 

20 pensated after all interested parties are given an opportunity 

21 for a public hearing, which shall be expedited in such cases, 

22 and after such order is final by the operator for lost time at 

23 their regular rates of pay for such time as the miners are 
2^ idled by such closing, or for one week, whichever is the 



163 



54 

1 lesser. Whenever an operator violates or fails or refuses to 

2 comply with any order issued under section 104, section 

3 105, or section 108 of this Act, all miners employed at the 

4 affected mine who would have been withdrawn from, or 

5 prevented from entering, such time or area thereof as a 

6 result of such order shall be entitled to full compensation by 

7 the operator at their regular rates of pay, in addition to pay 

8 received for work performed after such order was issued, 

9 for the period beginning when such order was issued and 

10 ending when such order is complied with, vacated, or ter- 

11 minated. The Commission shall have authority to order com- 

12 pensation due under this section upon the filing of a com- 

13 plaint by a miner or his representative and after opportunity 

14 for hearing subject to section 554 of title 5, United States 

15 Code. 

16 "administkative peovisions 

17 "Sec. 113. (a) The Secretary is authorized and 

18 directed to administer the provisions of this Act through a 

19 Mine Safety and Health Administration established under 

20 section 402 of the Federal Mine Safety and Health Amend- 

21 ments Act of 1977. The Secretary, acting through the Assist- 

22 ant Secretary for Mine Safety and Health, shall have author- 

23 ity to appoint, subject to the civil service laws, such officers 

24 and employees as he may deem necessary for the administra- 

25 tion of this Act, and to prescribe powers, duties, and responsi- 



164 



55 

^ bilities of all officers and employees engaged in the adminis- 

2 tration of this Act. 

3 " (b) Except as provided in section 518 (a) of title 28, 

4 United States Code, relating to litigation before the Supreme 

5 Court, the Solicitor of Labor may appear for and represent 
q the Secretary in any civil litigation brought under this Act. 
rj "the federal mine safety and health 

g REVIEW COMMISSION 

9 "Sec. 114. (a) The Federal Mine Safety and Health 

10 Review Commission is hereby established. The Commission 

H shall consist of five members, appointed by the President by 

12 and w ^h the advice and consent of the Senate, from among 

13 persons who by reason of training, education, or experience 

14 are qualified to carry out the functions of the Conimissiou 

15 under this Act. The President shall designate one of the 

16 members of the Commission to serve as Chairman. 

17 " (b) (1) The terms of the members of the Commission 

18 shall be six years, except that — 

19 " (A) members of the Commission, first taking office 

20 after the date of enactment of the Mine Safety and 
2i Health Amendments Act of 1977, shall serve, as desig- 

22 nated by the President at the time of appointment, one 

23 for a term of two years, two for a term of four years, 

24 and two for a term of six years; and 

25 " (B) a vacancy caused by the death, resignation, or 



165 



56 

1 removal of any member prior to the expiration of the 

2 term for which he was appointed shall be filled only for 

3 the remainder of such unexpired term. 

4 Any member of the Commission may be removed by the 

5 President for inefficiency, neglect of duy, or malfeasance in 

6 office. 

7 "(2) The Chairman shall be responsible on behalf of 

8 the Commission for the administrative operations of the 

9 Commission. The Commission shall appoint such employees 

10 as it deems necessaiy to assist in the performance of the 

11 Commission's functions and to fix their compensation in 

12 accordance with the provisions of chapter 51 and subchapter 

13 III of chapter 53 of title 5, United States Code, relating to 

14 classification and general pay rates. Upon the effective date 

15 of the Federal Mine Safety and Health Amendments Act of 

16 1977, the administrative law judges assigned to the Arling- 

17 ton, Virginia, Facility of the Office of Hearings and Appeals, 

18 United States Department of the Interior, shall be auto- 

19 matically transferred in grade and position to the Federal 

20 Mine Safety and Health Eeview Commission. Notwithstand- 

21 ing the provisions of section 559 of title 5 of the United 

22 States Code, the incumbent Chief Administrative Law Judge 

23 of the Office of Hearings and Appeals of the Department of 

24 the Interior assigned to the Arlington, Virginia, facility 

25 shall have the option, on the effective date of the Federal 



166 



57 

1 Mine Safety and Health Amendments Act of 1977, of trans- 

2 ferring to the Commission as an Administrative Law Judge, 
2 in the same grade and position as the other Administrative 

4 Law Judges. The Administrative Law Judges (except those 

5 presiding over Indian Probate Matters) assigned to the 
G Western facilities of the Office of Hearings and Appeals of 

7 the Department of the Interior shall remain with that De- 

8 partment at their present grade and position or they shall 
!) have the right to transfer on an equivalent hasis to that ex- 

10 tended in this paragraph to the Arlington, Virginia Admin- 

1 1 istrative Law Judges in accordance with procedures estab- 

12 lished by the Civil Service Commission. The Commission 

13 shall appoint such additional administrative law judges as 

14 it deems necessary to carry out the functions of the Coin- 

15 mission. Assignment, removal, and compensation of adminis- 

16 trative law judges shall be in accordance with sections 3105, 

17 3344, 5362, and 7521 of title 5, United States Code. 

18 " (c) The Commission is authorized to delegate to any 

19 group of three or more members any or all of the powers of 

20 the Board, except that two members shall constitute a quo- 

21 rum of any group designated pursuant to this paragraph. 

22 "(d)(1) An administrative law judge appointed by the 

23 Commission to hear matters under this Act shall hear, and 

24 make a determination upon, any proceeding instituted before 

25 the Commission and any motion in connection therewith, as- 



167 



56 

1 signed to such administrative law judge by the chief adminis- 

2 trative law judge of the Commission or by the Commission, 

3 and shall make a decision which constitutes his final disposi- 

4 tion of the proceedings. The decision of the administrative law 

5 judge of the Commission shall become the final decision of the 
q Commission thirty days after its issuance unless within such 
7 period the Commission has directed that such decision shall 
g be reviewed by the Commission in accordance with para- 
9 graph (2) of this subsection. An administrative law judge 

10 shall not be assigned to prepare a recommended decision 

11 under this Act. 

12 " (2) The Commission shall prescribe rules of procedure 

13 for its review of the decisions of administrative law judges in 

14 cases under this Act and which shall meet the following 

15 standards for review (the provisions of section 557(b) of 

16 title 5, United States Code, with regard to the review au- 

17 thority of the Commission are hereby expressly superseded 

18 to the extent that they are inconsistent with the provisions 

19 of paragraphs (A), (B), and (C) of this subsection) : 

20 " (A) Petitions for discretionary review. — 

21 (i) Any party may file and serve a petition for dis- 

22 cretionary review by the Commission of a decision of 

23 an administrative law judge within thirty days after the 

24 issuance of such decision. Eeview by the Commission 



168 



1 shall not be a matter of right but of the Bound discretion 

2 of the Commission. 

3 " (ii) Petitions for di>erctionary review shall be tiled 

4 only upon one or more of the following grounds: 

.") "(I) A finding or conclusion of material fact is 

6 not supported by substantial evidence. 

7 " (II) A necessary legal conclusion is erroneous. 

8 " (III) The decision is contrary to law or to the 

9 duly promulgated rules or decisions of the Com- 

10 mission. 

11 " (1^ ) A substantial question of law. policy, or 
l- discretion is involved. 

13 "•(▼) A prejudicial error of procedure was 

M committed. 

** "(iii) Each issue shall be separately numl)ered and 

plainly and concisely stated, and shall he supported by 
detailed citations to the record when assignments of 
error are based on the record, and by statutes, regula- 

19 tions, or principal authorities relied upon. Except for 

-^ good cause shown, no assignment of error by any party 

shall rely on any question of fact or law upon which 
the administrative law judge had not heen afforded an 
opportunity to pass. Eeview hy the Commission shall 
be granted only by affirmative vote of two of the Com- 



169 

60 

1 missioners present and voting. If granted, review shall 

2 be limited to the questions raised by the petition. 

3 " (B) Eeview by commission at its own initi- 

4 ative. — At any time within thirty days after the issu- 

5 ance of a decision of an administrative law judge, the 

6 Commission may in its discretion (by affirmative vote of 

7 two of the Commissioners present and voting) order the 

8 case before it for review but only upon the ground that 

9 the decision may be contrary to law or Commission pol- 

10 icy, or that a novel question of policy has been presented. 

11 The Commission shall state in such order the specific 

12 issue of law, Commission policy or novel question of 

13 policy involved. If a party's petition for discretionary 

14 review has been granted, the Commission shall not raise 
*«? or consider additional issues in such review proceedings 

16 except in compliance with this paragraph. 

17 "(C) Scope of eeview.— For the purpose of re- 

18 view by the Commission under paragraph (A) or (B) 

19 of this subsection, the record shall include (i) all mat- 

20 ters constituting the record upon which the decision of 

21 the administrative law judge was based, (ii) the rul- 

22 ings upon proposed findings and conclusions, (iii) the 

23 decision of the administrative law judge, (iv) the peti- 

24 tion or petitions for discretionary review, responses 

25 thereto, and the Commission's order for review, and 



170 



61 

1 (v) briefs filed on review. No other material shall be 

2 considered by the Commission upon review. The ad- 

3 ministrative law judge's findings and conclusions of fact, 

4 as distinguished from policy determinations, shall not 

5 be set aside by the Commission unless such findings or 

6 conclusions of fact are unsupported by substantial evi- 

7 deuce of record. The ( Commission either may remand 

8 the case to the administrative law judge for further 

9 proceedings as it may direct or it may affirm, set aside, 

10 or modify the decision or order of the administrative law 

11 judge in conformity with the record. If the Commission 

12 determine* that further evidence is necessary on an 

13 issue of fact it shall remand the case for further pro- 
H ccedings before the administrative law judge. 

15 "( e ) In connection with hearings before the Connnis- 

16 sion, or its administrative law judges, under this Act, the 
Commission and its administrative law judges may compel 
the attendance and testimony of witnesses and the production 

19 of books, papers, or documents or objects, and to order testi- 

20 mony to be taken by deposition at any stage of the proceedings 

21 before them. Any person may be compelled to appear and de- 
pose and produce like documentary or physical evidence, in 
the same manner as witnesses may be compelled to appear 
and produce evidence before the Commission and its adminis- 
trativc law judges. Witnesses shall be paid the same fees and 






171 



62 

1 mileage that are paid witnesses in the courts of the United 

2 States and at depositions ordered by such courts. In case of a 

3 contumacy, failure, or refusal of any person to obey a sub- 

4 pena or order of the Commission or an administrative law 

5 judge, respectively, to appear, to testify, or to produce docu- 

6 mentaiy or physical evidence, any district court of the 

7 United States or the United States courts of any territory 

8 or possession, within the jurisdiction of which such person is 

9 found, or resides, or transacts business, shall, upon the appli- 

10 cation of the Commission, or the administrative law judge, 

11 respectively, have jurisdiction to issue to such person an or- 

12 der requiring such person to appear, to testify, or to produce 

13 evidence as ordered b}' the Commission or the administrative 

14 law judge, respectively, and any failure to obey such order 

15 of the court may be punished by said court as a contempt 

16 thereof. 

17 ''AUTHORIZATION OF APPROPRIATIONS 

18 "Sec. 115. There are authorized to be appropriated, 

19 out of any moneys in the Treasury not otherwise appro- 

20 priated, such sums as may be necessary to carry out the 

21 provisions of this title.". 

22 MANDATORY SAFETY TRAINING 

23 "Sec. 116. (a) Each operator shall have a safety 

24 training program which shall be approved by the Secretary. 

25 The Secretary shall promulgate regulations with respect to 



20-040 O - 78 - 12 



172 



63 

1 -such safety training programs no more than one hundred 

2 and eighty days after the effective date of the Federal Mine 

3 Safety and Health Amendments Act of 1977. Each training 

4 program approved by the Secretary shall provide no less than 

5 thatr— 

(j "(1) llew miners shall receive no less than forty 

7 hours of teaming if they are to work underground. 

8 Such training shall include use of the self-rescue device 

9 and use of respiratory devices, hazard recognition. 

10 escapeway&j walk around training, emergency proce- 

11 dures, basic ventilation, hasic roof control, electrical 

12 hazards, first aid, and the health and safety aspects of 

13 the task to which he will he assigned; 

14 '* (-) new miners shall receive no less than twenty- 

15 four hours of training if they are to work on the sur- 

16 face. Such training shall include use of the self-rescuer 

17 device and use of respiratory devices, hazard recog- 

18 nition, emergency procedures, electrical hazards, first aid, 

19 walk around training and the health and safety aspects 

20 of the task to which he will he assigned ; 

2i "(3) all miners shall receive no less than eight 

22 hours of refresher training no less frequently than once 

23 each twelve months, except that miners already em- 

24 ployed on the effective date of the Federal Mine Safety 

25 and Health Amendments Act of 1977 shall receive this 



173 



64 

1 refresher training no more than ninety days after the 

8 date of approval of the training plan required hy this 

3 section; 

4 "(4) any miner who is reassigned to a new task 

5 shall receive training in accordance with a training 

6 plan approved by the Secretory under this subsection 

7 in the safety and health aspects specific to that task prior 

8 to performing that task. 

9 "(b) Any safety training provided under subsection 

10 (a) of this section shall be provided during normal work- 

11 ing hours. Miners shall be paid at their normal rate of 

12 compensation while they take such training, and new miners 

13 shall be paid at their starting wage rate when they take 

14 the new miner training. If such training shall be given at 

15 a location other than the normal place of work, miners 

16 shall also be compensated for the additional costs they may 

17 incur in attending such training sessions. 

18 " (c) Upon completion of each training program, each 

19 operator shall certify, on a form approved by the Secretary, 

20 that the miner has received the specified training in each 

21 .subject area of the approved safety training plan. A certifi- 

22 eate for each miner shall be maintained by the operator, and 

23 shall be available for inspection at the mine site, and a copy 

24 thereof shall be given to each miner at the completion of such 

25 training. When a miner leaves the operator's employ, he shall 



174 



65 

1 i»e entitled to a copy of his safety training certificates. False 

2 certification by an operator that training was given shall be 

3 punishable under section 1 1 1 (a) and (h) of this Act; and 

4 each safety training certificate shall indicate on its face, in 

5 bold letters, printed in a conspicuous manner (he fact that 

6 such false certification is so punishable. 

7 "(d) Within one hundred and eighty days after the 

8 effective date of the Federal Mine Safety and Health Amend- 

9 nients Act of 1977, the Secretary shall publish regulations 

10 which shall provide that mine rescue teams comprised of 

11 Federal mine inspectors shall be maintained at each district, 

12 subdistrict, and, where practicable, field oflice of the Mine 

13 Safety and Health Administration. ". 

M AMENDMENTS WITH RESPECT TO INTEKIM MANDATORY 

1 5 HEALTH STANDARDS 

16 Sec. 202. (a) (1) Section 201 (a) of the Federal Coal 
1^ Mine Health and Safety Act of 1969 is amended by striking 

18 out "coal mines" and inserting in lieu thereof "mines, as 

19 applicable". 

20 (2) Section 201 (b) of such Act is amended by striking 

21 out "coal mine" and inserting in lieu thereof "mine". 

22 (b) Section 205 of such Act is amended by striking 

23 out "coal mining" and inserting in lieu thereof "mining". 

24 (c) Section 206 of such Act is amended by striking out 



175 



66 

1 "coal mine" each time it appears therein and inserting in 

2 lieu thereof "mine". 

3 (d) (1) Section 202(e) of the Federal Coal Mine 

4 Health and Safety Act of 1969 is amended to read as 

5 follows : 

6 "(e) References to concentrations of respirable dust in 

7 this title means the average concentration of respirable dust 

8 measured with a device approved by the Secretary and the 

9 Secretary of Health, Education and Welfare.". 

10 (2) Section 318 of the Federal Coal Mine Health and 

11 Safety Act of 1969 is amended by striking subsection (k) 

12 thereof. 

13 AMENDMENTS WITH EESPECT TO INTEEIM MANDATOEY 

14 SAFETY STANDARDS FOE UNDEEGEOTJND COAL MINES 

15 Sec. 203. Title III of the Federal Coal Mine Health 

16 and Safety Act of 1969 is amended by striking section 301 

17 (c) and (d) thereof. 

18 TITLE III— MISCELLANEOUS PBOVISIONS 

19 TEANSFEE MATTEES 

20 Sec. 301. (a) Except with respect to the functions 

21 assigned to the Secretary of the Interior pursuant to section 

22 501 of the Federal Coal Mine Health and Safety Act of 

23 1969, the functions of the Secretary of the Interior under 

24 the Federal Coal Mine Health and Safety Act of 1969, as 

25 amended, and the Federal Metallic and Nonmetallic Mine 



176 



67 

1 Safety Act of 1966 are transferred to the Secretary of Labor, 

2 except those which are expressly transferred to the Commis- 

3 sion by this Act. 

4 (b) (1) The mandatory standards relating to mines, 

5 issued by the Secretary of the Interior under the Federal 
(J Metallic and Nonmetallic Mine Safety Act of 1966 and 

7 standards and regulations under the Federal Coal Mine 

8 Health and Safety Act of 1969 which are in eiTect on the 

9 date of enactment of this Act shall remain in effect as 

10 standards applicable to metallic and nonmetallic mines and 

11 to coal mines respectively under the Federal Mine Safety and 

12 Health Act of 1977 until such time as the Secretary shall 

13 issue new or revised standards. 

14 (2) Within sixty days after the effective date of this 

15 Act, the Secretary shall establish an advisory committee 

16 under section 103 of the Federal Mine Safety and Health 

17 Act of 1977 which shall, within one hundred and eighty 

18 days after the date of the establishment of such advisory 

19 committee, review the advisory health and safety standards 

20 issued by the Secretary of the Interior under the Federal 

21 Metallic and Nonmetallic Mine Safety Act of 1966 and rec- 

22 ommend to the Secretary which of those standards (or any 

23 modification of such standards which does not substantially 

24 diminish the health and safety of miners) should be pro- 

25 mulgated as health and safety standards under this section. 



177 



68 

1 The Secretary shall publish, within sixty days after any 

2 recommendations of the advisory committee under this para- 

3 graph, each of the standards so recommended for adoption 

4 with or without modification as a health and safety standard 

5 under this section by publication of such standard in the 

6 Federal Register, and afford interested persons a period of 

7 twenty-five days after publication to submit written data or 

8 comment. Within thirty days after the close of the comment 

9 period specified in the preceding sentence, the Secretary shall 

10 promulgate by publication in the Federal Register a standard 

11 based upon the advisory committee recommended with or 

12 without modification, and the data and comments received 

13 thereon, unless the Secretary determines that such a standard 
1-1 will not promote the health and safety of miners and pub- 

15 lishes an explanation of that determination in the Federal 

16 Register. 

17 (3) All interpretations, regulations, and instructions of 

18 the Secretary of the Interior or the Director of the Bureau 

19 of Mines, in effect on the date of enactment of this Act and 

20 not inconsistent with any provision of this Act or any 

21 amendment made by this Act, shall be published in the Fed- 

22 eral Register and shall continue in effect until modified or 

23 superseded in accordance with the provisions of this Act. 

24 (c) (1) All unexpended balances of appropriations, per- 

25 sonnel, property, records, obligations, and commitments 



178 



69 

1 which arc used primarily with respect to any function trans- 

2 ferred under the provisions of subsection (a) of this section 

3 to the Secretary shall be transferred to the Department of 

4 Labor or the Commission, as appropriate. The transfer of 

5 personnel pursuant to this paragraph shall be without reduc- 

6 lion in classification or compensation for one year after such 

7 transfer, except that the Secretary of Labor shall have full 

8 authority to assign personnel during such one-year period in 

9 order to efficiently carry out functions transferred to him 

10 under this Act. 

11 (2) All orders, decisions, determinations, rules, regula- 

12 tions, permits, contracts, certificates, licenses, and privileges 

13 (A) which have been issued, made, granted, or allowed 

14 to become effective in the exercise of functions which are 

15 transferred under this section by any department or agency, 

16 any functions of which are transferred by this section, and 

17 (B) which are in effect at the time this section takes effect, 

18 shall continue in effect according to their terms until modi- 

19 fied, terminated, superseded, set aside, or repealed by the 

20 Secretary of Labor, the Federal Mine Safety and Health 

21 Review Commission, by any court of competent jurisdiction, 

22 or by operation of law. 

23 (3) The provisions of this section shall not affect any 

24 proceedings pending at the time this section takes effect 

25 before any department or agency, functions of which are 



179 



70 

1 transferred by this section; except that such proceedings, to 

2 the extent that they relate to functions so transferred, shall 

3 be continued before the Secretary of Labor or the Federal 

4 Mine Safety and Health Review Commission. Orders shall 

5 be issued in such proceedings, appeals shall be taken there- 

6 from, and payments shall be made pursuant to such orders, 

7 as if this section had not been enacted; and orders issued in 

8 any such proceedings shall continue in effect until modified, 

9 terminated, superseded, or repealed by the Secretary of 

10 Labor, the Federal Mine Safety and Health Review Com- 

11 mission, by a court of competent jurisdiction, or by operation 

12 of law. 

13 (4) The provisions of this section shall not affect suits 

14 commenced prior to the date this section takes effect and in 

15 all such suits proceedings shall be had, appeals taken, and 
1^ judgments rendered, in the same manner and effect as if 

17 this section had not been enacted; except that if before the 

18 date on which this section takes effect, any department or 

19 agency (or officer thereof in his official capacity) is a party 

20 to a suit involving functions transferred to the Secretary, 

21 then such suit shall be continued by the Secretary of Labor. 

22 JSTo cause of action, and no suit, action, or other proceeding, 

23 by or against any department or agency (or officer thereof 

24 in his official capacity) functions of which are transferred 

25 by this section, shall abate by reason of the enactment of this 



180 



71 

1 section. Causes of actions, suits, actions, or other proceedings 

2 may be asserted by or against the United States or the Secre- 

3 tary as may be appropriate and, in any litigation pending 

4 when this section takes effect, the court may at any time, on 

5 its own motion or that of any party, enter an order which 

6 will give effect to the provisions of this paragraph. 

7 (d) For purposes of this section, (1) the term "func- 
H tion" includes power and duty, and (2) the transfer of a 
9 function, under any provision of law, of an agency or the 

10 head of a department shall ;ilso be a transfer of all functions 

11 under such law which are exercised by any officer or offi- 

12 cer of such agency or department. 

13 MINE SAFETY AND HEALTH ADMINISTRATION 

14 Sec. 302. (a) There is established in the Department 

15 of Labor, a Mine Safety and Health Administration to 

16 be headed by an Assistant Secretary of Labor for Mine 

17 Safety and Health appointed by the President, by and with 

18 the advice and consent of the Senate. The Secretary is au- 

19 thorized and directed, except as specifically provided other- 

20 wise, to carry out his functions under the Federal Mine Safety 

21 and Health Amendments Act of 1977 through the Mine 

22 Safety and Health Administration. 

23 (b) Section 5315 of title 5, United States Code, is 

24 amended by adding at the end thereof the following 

25 paragraph : 



181 



72 

1 "(109) Assistant Secretary of Labor for Mine 

2 Safety and Health.". 

3 (c) (1) Section 5145 of title 5, United States Code, is 

4 amended by adding at the end thereof the following new 

5 paragraph : 

6 "(64) Chairman, Federal Mine Safety and Health 

7 Review Commission.". 

8 (2) Section 5315 of title 5, United States Code, is 

9 amended by adding at the end thereof the following new 

10 paragraph : 

11 " (109) Members, Federal Mine Safety and Health 

12 Eeview Commission.". 

13 (d) The principal office of the Commission shall be in 

14 the District of Columbia. Whenever the Commission deems 

15 that the convenience of the public or of the parties may be 

16 promoted, or delay or expense may be minimized, it may 

17 hold hearings or conduct other proceedings at any other 

18 place. 

19 AMENDMENTS WITH EESPECT TO MINE SAFETY AND 

20 HEALTH ADMINISTRATION 

21 Sec. 303. (a) (1) Section 501 (a) of the Federal Coal 

22 Mine Health and Safety Act of 1969 is amended by striking 

23 out the word "coal" wherever it appears therein, and by 

24 striking out "The Secretary and" and inserting in lieu thereof 

25 "The Secretary of the Interior and". 



182 



73 

1 (2) Section 501 (a) of the Federal Coal Mine Health 

2 and Safety Act of 1969 is further amended hy inserting 

3 immediately after paragraph "(10)" thereof, the following 

4 new paragraph: 

5 " (11) to, upon the written request by any operator 

6 or authorized representative of miners, specifying with 

7 reasonable particularity the grounds upon which such 

8 request is made determine whether any substance nor- 

9 mally found in a mine has potentially toxic effects in the 

10 concentrations normally found in the mine or whether 

11 any physical agents or equipment found or used in a 

12 mine has potentially hazardous effects, and shall submit 

13 such determinations to both the operators and miners 
44 as soon as possible;" and 

15 by renumbering the current paragraph "(11)" as "(12)". 

1(} (3) Section 501 (b) of such Act is amended by striking 

47 out the word "coal" each time it appears therein and by 

-jg adding after the word "Welfare" the following: "through the 

jo National Institute for Occupational Safety and Health estab- 

9 a lished under the Occupational Safety and Health Act of 

o-j 1970"; and by striking out the period at the end thereof 

99 and inserting "of the Interior in coordination with the 

23 Secretary". 

24 (4) Section 501 (d) of such Act is amended by striking 

25 out the word "coal". 



183 



74 

1 (5) Section 501 of such Act is further amended by add- 

2 ing at the end thereof the following new subsection : 

3 "(h) The Secretary shall compile accurate statistics on 

4 work injuries and illnesses occurring in the mines subject to 

5 this Act". 

6 (b) Section 502 of such Act is amended by striking 

7 out the word "coal" each time it appears therein. 

8 (c) (1) Section 503(a) of such Act is amended by 

9 striking out the word "coal" each time it appears therein. 

10 (2) Section 503 (b) of such Act is amended by striking 

11 out the word "coal" each time it appears therein. 

12 (d) (1) Section 503(f) of such Act is amended by 

13 striking out the word "coal". 

14 (2) Section 503 (g) of such Act is amended by striking 

15 out the word "coal". 

16 (e) (1) Section 505 of such Act is amended by striking 

17 out "the mining of coal" and inserting in lieu thereof "in 

18 mining". 

19 (2) Section 505 of such Act is further amended by 

20 changing the period at the end of the second sentence thereof 

21 to a colon, and adding the following language: "Provided 

22 however, That, to the maximum extent feasible, in the selec- 

23 tion of persons for appointment as mine inspectors, no person 

24 shall be so selected unless he has the basic qualification of at 

25 least five years practical mining experience and in assigning 



184 



75 

1 mine inspectors to the inspection and investigation of individ- 

2 ual mines, due consideration shall be given to the extent pos- 

3 sible to their previous experience in the particular type of 

4 mining operation where such inspections are to be made." 

5 (f) Section 506 (b) of such Act is amended by striking 

6 out the word "coal" each time it appears therein. 

7 (g) 0) Section 511(a) of such Act is amended by 
S striking out the word "coal". 

9 (2) Section 511 (b) of such Act is amended by striking 

10 out the word "coal". 

11 (h) Section 502 of such Act is amended by adding the 

12 following new subsection (c) : 

13 "(c) (1) The National Mine Health and Safety Acad- 

14 emy shall be maintained as an agency of the Department 

15 of the Interior. The Academy shall be responsible for the 

16 training of mine safety and health inspectors under section 

17 505 of this Act, and in training of technical support per- 

18 sonnel of the Mine Safety and Health Administration estab- 

19 lished under section 302 of the Federal Mine Safety and 

20 Health Amendments Act of 1977; and for any other train- 

21 ing programs for mine inspectors, mining personnel, or other 

22 persons as the Secretaries of Labor and Interior shall desig- 

23 nate. In performing this function, the Academy shall have 

24 the authority to enter into cooperative educational and train- 

25 ing agreements with educational institutions, State govern- 



185 



76 

1 ments, labor organizations, and mine operators and related 

2 industries. Such training shall be conducted by the Academy 

3 in accordance with curriculum needs and assignment of 

4 instructional personnel established by the user. 

5 "(2) In performing its function pursuant to this sec- 
G tion, the National Mine Health and Safety Academy shall 

7 use the facilities and personnel of the Department of the In- 

8 terior, and such other personnel as shall be mutually agreed 

9 upon by the Secretaries of Labor and Interior. The Secretary 

10 of the Interior, upon request by the Academy, shall appoint 

11 or assign to the Academy such officers and employees as the 

12 Director of the Academy deems necessary for the perform- 

13 ance of the duties and functions of the Academy. 

14 "(3) The Secretary of the Interior shall conduct his 

15 safety research responsibilities under section 501 of this Act 

16 in coordination with the Secretary of Labor, and the Secre- 

17 taries of Labor and the Interior are authorized to enter into 

18 contractual or other agreements for the performance of such 

19 safety related research.". 

20 (i) Section 7 (b) (5) of the Small Business Act is 

21 amended by striking out the word "coal". 

22 SAVINGS PBOVISION 

23 Sec. 304. Nothing contained in this Act or any amend- 

24 ment made by this Act shall be construed to reduce the 
2<> number of inspectors engaged in enforcement of the Fed- 



186 



77 

1 eral Coal Mine Health and Safety Act of 1969 and Fed- 

2 eral Metallic and Nonmetallic Mine Safety Act of 1966 as in 

3 effect prior to the effective date of this Act or to reduce 

4 the number of inspectors engaged in the enforcement of 

5 the Occupational Safety and Health Act of 1970. 

6 BUDGET PROVISION 

7 Sec. 305. In the preparation of the Budget message 

8 required under section 201 of the Budget and Accounting 

9 Act, 1921 (31 U.S.C. 11), the President shall set forth 

10 as separate appropriation accounts amounts required for 

11 appropriation for mine health and safety pursuant to the 

12 Federal Mine Health and Safety Act of 1977 and for occu- 

13 pational safety and health pursuant to the Occupational 

14 Safety and Health Act of 1970. 

15 REPEALER 

16 Sec. 306. The Federal Metal and Nonmetallic Mine 

17 Safety Act of 1966 is repealed. 

18 effective date 

19 Sec. 307. This Act and the amendments made by this 

20 Act shall take effect on the first day of July 1978 except 

21 that the Secretary of Labor is authorized to establish 

22 such rules and regulations as may be necessary for the effi- 

23 cient transfer of functions provided under this Act. 



187 

[From the Congressional Record — House, Mar. 2, 1977] 

(Pp. 1657-1659) 
******* 

Public Bills and Resolutions 

Under clause 5 of rule X and clause 4 of rule XXII, public bills 
and resolutions were introduced and severally referred as follows : 



By Mr. Gaydos (for himself and Mr. Dent) : 
H.R. 4287. A bill to promote safety and health in the mining in- 
dustry, to prevent recurring disasters in the mining industry, and for 
other purposes ; to the Committee on Education and Labor. 



[The text of H.R. 4287 follows :] 



20-040 O - 78 - 13 



188 



95th CONGRESS 
1st Session 



H. R. 4287 



IN THE HOUSE OF KEPRESENTATIVES 

March ± L977 

Mr. Gatdoa (for himself and Mr. Dsnt) int rodnoed the following bill ; which 
was referred to the Committee on Education and Labor 



A BILL 

To promote safety and health in the mining industry, to prevent 
recurring disasters in the mining industry, and for other 
purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 That this Act may be cited as the "Federal Mine Safety and 

4 Health Amendments Act of 1977". 

II 



189 



2 

1 TITLE I— AMENDMENTS TO THE GENERAL 

2 PROVISIONS OF THE FEDERAL COAL MINE 

3 HEALTH AND SAFETY ACT OF 1969 

4 SIIOKT TITLE 

5 Sec. 101. The first section of the Federal Coal Mine 

6 Health and Safety Act of 19G9 is amended to read as fol- 

7 lows: "That this Act may he cited as the 'Federal Mine 

8 Safety and Health Act of 1977' ". 

9 DEFINITIONS AND APPLICABILITY 

10 Sec. 102. (a) (1) Section 2 of the Federal Coal Mine 

11 Health and Safety Act of 1969 is amended hy striking out 

12 "coal" wherever it appears. (2) Section 2(g) (1) of such 

13 Act is amended by striking out "the Interior" and inserting 

14 in lieu thereof "Labor". 

15 (b) (1) Section 3 (a) of such Act is amended by strik- 

16 ing out "the Interior" and inserting in lieu thereof "Labor". 

17 (2) Section 3 (d) of such Act is amended by deleting 

18 the semicolon at the end thereof, ^and inserting in lieu thereof 

19 "or any independent contractor performing services or con- 

20 struction at such mine;" 

21 (3) Section 3(h) of such Act is amended to read as 

22 follows: 

23 "(h) 'Mine' means (1) an area of land from which 

24 minerals are extracted . in nonliquid form or, if in liquid 

25 form, are extracted with workers underground, (2) private 



190 



3 

1 ways and roads appurtenant to such area, and (3) lands, 

2 excavations, underground passageways, shafts, slopes, tun- 

3 nels, and workings, structures, facilities, equipment, machines, 

4 tools, or other property including impoundments, retention 

5 dams, and tailings ponds, on the surface or underground, used 

6 in, or to be used in, or resulting from, the work of extracting 

7 such minerals from their natural deposits in nonliquid form, 

8 or if in liquid form, with workers underground, or used in the 

9 milling of such minerals, or the work of preparing coal, and 

10 includes custom coal preparation facilities, except that with 

11 respect to protection against radiation hazards such term shall 

12 not include property used in the milling of source minerals 

13 defined in the Atomic Energy Act of 1954, as amended. In 

14 making a determination of what constitutes mineral milling 

15 for purposes of this Act the Secretary shall give due consider- 

16 ation to the convenience of administration resulting from the 

17 delegation to one Assistant Secretary of all authority with 

18 respect to the health and safety of miners employed at one 

19 physical establishment." 

20 (4) Sections 3 (d) , (e), (g}, and (j) of such Act are 

21 each amended by striking out the word "coal" wherever it 

22 appears. 

23 (5) Section 3 of such Act is amended by striking out the 

24 word ''and" at the end of paragraph (1) , by striking out tlie 

25 period at the end of paragraph (m) and inserting in lieu 



191 



4 

1 thereof a semicolon, and by adding at the end thereof the 

2 following new paragraphs : 

3 " (n) 'Administration' means the Mine Safety and 

4 Health Administration in the Department of Labor; and 

5 " (o) 'Commission' means the Federal Mine Safety and 

6 Health Review Commission." 

7 (c) Section 4 of such Act is amended by striking out 

8 the word "coal". 

9 (d) (1) Section 5(c) of such Act is amended by strik- 

10 ing out Labor" and inserting in lieu thereof "the Interior". 

11 (2) Section 5(f) of such Act is amended by striking 

12 out the word "coal" wherever it appears, and by striking 

13 out "section 106" and substituting "section 107". 

14 TITLE II— MINE SAFETY AND HEALTH 

15 STANDARD AMENDMENTS 

16 AMENDMENT TO TITLE 1 

17 Sec. 201. Title I of the Federal Coal Mine Health and 
Safety Act of 1969 is amended to read as follows: 

19 "duties 

20 "Sec. 101. (a) Each mine operator (1) shall furnish 
2 * to each miner employment and a place of employment which 

are free from recognized hazards that are causing or are 

23 likely to cause death or harm to such miner; and (2) shall 

comply with the safety and health standards and all rules, 

regulations, and orders promulgated under this Act; and 



! 



192 

5 

1 "(b) Each miner subject to the provisions of this Act 

2 shall comply with the safety and health standards and all 

3 rules, regulations, and orders promulgated under this Act 

4 which are applicable to his own actions and conduct. 

5 "safety and health standards 

G Sec. 102. (a) The Secretary may by rule promulgate, 

7 modify, or revoke any safety and health standards for the 

s health and safety of miners, including standards for mine 

9 rescue and firefighting operations, and for the prevention 

10 of accidents, injuries, or health hazards in mines which arc 

11 subject to this Act in accordance with section 553 of title 5, 

12 United States Code (without regard to any reference in such 

13 section to sections 556 and 557 of such title), and the fol- 

14 lowing provisions : 

15 "(1) Whenever the Secretary, upon the basis of infor- 
1G mation submitted to him in writing by an interested person, 

17 a representative of any organization of employers or em- 

18 ployees, a nationally recognized standards-producing organi- 

19 zation, the Secretary of Health, Education, and Welfare, the 

20 National Institute for Occupational Safety and Health, or a 

21 State or political subdivision, or on the basis of information 

22 developed by the Secretary or otherwise available to him, 

23 determines that a rule should be promulgated in order to 

24 serve the objectives of this Act, the Secretary may request 

25 the recommendations of an advisory committee appointed 



193 



6 

1 under section 103 of this Act. The Secretary shall provide 

2 such an advisory committee with any proposals of his own 

3 or of the Secretary of Health, Education, and Welfare, to- 

4 gether with all pertinent factual information developed by 

5 the Secretary or the Secretary of Health, Education, and 

6 Welfare, or otherwise available, including the results of re- 

7 search, demonstrations, and experiments. An advisory com- 
3 mittee shall submit to the Secretary its recommendations 
9 regarding the rule to be promulgated within ninety days from 

10 the date of its appointment or within such longer or shorter 

11 period as may be prescribed by the Secretary, but in no event 

12 for a period which is longer than one hundred and eighty 
S3 days. When the Secretary receives a recommendation from 

14 the National Institute for Occupational Safety and Health 

15 that a rule be promulgated, modified, or revoked, the Secre- 

16 teaay must, within sixty days after receipt thereof, refer such 

17 recommendation to an advisory committee pursuant to this 

18 paragraph, or publish such as a proposed rule pursuant to 

19 paragraph (2) of this subsection, or publish in the Federal 

20 Register his determination not to do so, and his reasons 

21 therefor. 

22 " (2) The Secretary shall publish a proposed rule pro- 
g's tnuigating, modifying, or revoking a safety and health stand- 

24 ard in -the Federal Register. If the Secretary determines that 

25 a rule should be proposed and in connection therewith has 



194 



7 

J appointed an advisory committee as provided by paragraph 

2 ( 1 ) of this subsection, the Secretary shall publish a proposed 

3 rule or the reasons for his determination not to publish suck 

4 ruk, within sirty days following the submission of the advi- 

5 sory committee's recommendation, or the expiration of the 

6 period of time prescribed by the Secretary in such submission. 

7 In cither event, the Secretary shall afford interested persons 

8 a period of thirty days after any such publication to submit 

9 written data or comments on the proposed rule. 

10 " (3) On or before the last day of the period provided 

11 for the submission of written data or comments under para- 

12 graph (2) , any interested person may file with the Secretary 

13 written objections to the proposed rule, stating the grounds 
1-i therefor and requesting a public hearing on such objections. 

15 Within thirty days after the last day for filing such objec- 

16 tions, the Secretary shall publish in the Federal Register a 

17 notice specifying the safety or health standard to which 

18 objections have been filed and a hearing requested, and 

19 specifying a time and place for such hearing. Any hearing 

20 under this subsection shall be held promptly. Hearings re- 

21 quired by this subsection shall be informal and shall be 

22 conducted by the Secretary, who may prescribe such rules 

23 and make such rulings concerning procedures in such hear- 
24 . ings to avoid unnecessary costs or delay. A verbatim tran- 



195 



8 

1 script shall be taken of any such informal hearing and shall 

2 be available to the public. 

3 " (4) Within sixty days after the expiration of the 

4 period provided for the submission of written data or com- 

5 ments under paragraph (2), or within sixty days after the 

6 completion of any hearing held under paragraph (3), the 

7 Secretary shall issue a rule promulgating, modifying, or re- 

8 voking a safety or health hazard or make a determination 

9 that a rule should not be issued. Such a rule may contain a 

10 provision delaying its effective date for such period (not in 

11 excess of ninety days) as the Secretary determines may be 

1 2 necessary to insure that affected operators and miners will be 

13 informed of the existence of the standard and of its terms and 
^ that operators affected are given an opportunity to familiarize 
!3 themselves and their employees with the existence of the 
2Q requirements of the standard. 

11 "(5) (A) The Secretary, in promulgating standards 

18 dealing with toxic materials or harmful physical agents under 

29 this subsection, shall set standards which most adequately 

20 assure on the basis of the best available evidence that no miner 

• 2i will suffer any material impairment of health or functional 

22 capacity even if such miner has regular exposure to the 

23 hazards dealt with by such standard for the period of his 

24 working life. Development of standards under this subsection 

25 shall be based upon research, demonstrations, experiments, 



196 



9 

1 and rach other information as may be appropriate. In 

2 addition to the attainment of the highest degree of health and 

3 safety protection for the employee, other considerations shall 

4 be the latest available scientific data in the field, the feasibility 

5 of the standards and experience gained under this and other 

6 health and safety laws. Whenever practicable, the standard 

7 promulgated shall be expressed in terms of objective criteria 

8 and of the p erfo rmance desired. 

9 (B) The Secretary of Health, Education, and Welfare 

10 as soon as possible after the date of enactment of the Federal 

11 Mine Safety and Health Amendments Act of 1977 but in 

12 no event later than three years after such date and on a 

13 continuing basis thereafter, mall, for each toxic material 

14 or harmful physical agent which is used or found in a 

15 mine, determine whether such material or agent is poten- 

16 tially toxic at the concentrations in which it is used or 

17 found in a mine, and shall immediately submit such deter- 

18 mination to the Secretary, together with all pertinent 

19 criteria. Within sixty days after receiving any determination 

20 together with criteria in accordance with the preceding 

21 sentence relating to a toxic material or harmful physical 

22 agent which is not covered by a health or safety standard 

23 promulgated under this section, the Secretary shall either 

24 appoint an advisory committee to make recommendations 

25 with respect to a health and safety standard covering such 



197 

10 

1 material or agent in accordance with paragraph ( 1 ) of this 

2 subsection or publish a proposed rule promulgating such 

3 a health and safety standard in accordance with paragraph 

4 (2) of this subsection or shall publish his determination 

5 not to do so. 

6 "(6) Any standard promulgated under this subsection 

7 shall prescribe the use of labels or other appropriate forms 
<} of warning as are necessary to insure that employees are ap- 
9 prised of all hazards to which they are exposed, relevant 

10 symptoms and appropriate emergency treatment, and proper 

11 conditions and precautions of safe use of exposure. Where 

12 appropriate, such standard shall also prescribe suitable pro- 

13 tective equipment and control or technological procedures 

14 to be used in connection with such hazards and shall pro- 

15 vide for monitoring or measuring employee exposure at such 

16 locations and intervals, and in such manner so as to assure 

17 the maximum protection of miners. In addition, where 

18 appropriate, any such standard shall prescribe the type and 

19 frequency of medical examinations or other tests which shall 

20 be made available, by the operator or at his cost, to miners 

21 exposed to such hazards in order to most effectively detcr- 

22 mine whether the health of such employees is adversely 

23 affected by such exposure. Where appropriate, the standard 

24 shall provide that where a determination is made that a 

25 miner may suffer material impairment of health or functional 



198 



11 

1 capacity by reason of exposure to the hazard covered by the 

2 standard, that miner shall be removed from such exposure 
?, and reassigned. Any miner transferred as a result of such 
4 exposure shall continue to receive compensation for such 
.1 work at not less than the regular rate of pay for miners 
(j in the classification such miner held immediately prior to 

7 his transfer. In the event such medical examinations are in 

8 the nature of research, as determined by the Secretary of 
D Health, Education, and Welfare, sucli examinations may he 

10 furnished at the expense of the Secretary of Health, Kduca- 

11 tion. and Welfare. The results of such examinations or tests 

12 shall be furnished only to the Secretary or the Secretary 

13 of Health. Education, and Welfare, and, at the request of the 
11 miner, to his designated physician. 

15 "(7) In promulgating or revoking standards as author- 

16 ized in this title, or in publishing any rule as authorized in 

17 this title, the Secretary shall not reduce the protection af- 

18 forded miners below that provided by any safety or health 

19 standard previously in effect. 

20 "(b) (1) The Secretary shall provide, without regard 

21 to the requirements of chapter 5, title 5, United States Code. 

22 for an emergency temporary standard to take immediate 

23 effect upon publication in the Federal Register if he deter- 

24 mines (A) that miners are exposed to grave danger from 

25 exposure to substances or agents determined to he toxic or 



199 



12 

1 physically harmful, and (B) that such emergency standard 

2 is necessary to protect miners from such danger. 

3 "(2) Such standard shall he effective until superseded 

4 by a standard promulgated in accordance with the proce- 

5 dures prescribed in paragraph (3) of this subsection. 

6 " (3) Upon publication of such standard in the Federal 

7 Register, the Secretary shall commence a proceeding in ac- 

8 cordance with section 102 (a) of this Act, and the standard 

9 as published shall also serve as a proposed rule for the pro- 

10 ceeding. The Secretary shall promulgate a standard under 

11 this paragraph no later than nine months after publication of 

12 the emergency standard as provided in paragraph (2) of 

13 this subsection. 

14 " (c) The Secretary is authorized to grant a variance 

15 from any standard or portion thereof whenever he dcter- 

16 mines, or the Secretary of Health, Education, and Welfare 

17 certifies, that such variance is necessary to permit an oper- 

18 ator to participate in research approved by him or the Sec- 

19 retary of Health, Education, and Welfare designed to demon- 

20 strate or validate new and improved techniques to safeguard 

21 the health or safety of workers. No such variance shall be 

22 granted until the Secretary shall find that the granting of 

23 such variance will not adversely affect the health or safety 

24 of the miners, and the Secretary notifies the miners affected 

25 directly and by publication in tbe Federal Register. 



200 



13 

1 '* (d) (1) Any operator may apply to the Secretary for 

2 a temporary order permitting limited noncompliance with 

3 a standard or any provision thereof promulgated under this 

4 section. Such temporary order shall be granted only if the 

5 operator files an application which meets the requirements of 

6 paragraph (2) and establishes that (A) he is unable to 

7 comply with a standard by its effective date because of 

8 unavailability of professional or technical personnel or of 

9 materials and equipment needed to come into compliance 

10 with the standard or because necemiy construction or altera- 

11 tion of facilities cannot be completed by the effective date, 

12 (B) he will guarantee that employees are afforded no less 

13 than the same measure of protection they would have been 

14 provided by such standard, and (C) he has an effective 

15 program for coming into compliance with the standard as 

16 quickly as practicable. Any temporary order issued under this 

17 subsection shall prescribe the practices, means, methods, 

18 operations, and processes which the operator must adopt and 

19 use while the order is in effect and state in detail his pro- 

20 gram for coming into compliance with the standard. Such a 

21 temporary order may be granted only after notice to em- 

22 ployees and an opportunity for a public hearing: Provided, 

23 That the Secretary may issue one interim order to be ef- 

24 fective until a decision is made on the basis of the hearing, 

25 or for sixty days, whichever is less, and the length of time 



201 

14 

1 for which any such interim order may he in effect shall be 

2 deducted from the period for which a temporary order, if 

3 granted, shall be effective. Xo temporary order may be in 

4 effect for longer than the period needed by the employer to 

5 achieve compliance with the standard or six months, which- 

6 ever is shorter, except that such an order may be renewed 

7 not more than twice (i) so long as the requirements of this 

8 subsection are met, and (ii) if an application for renewal 

9 is filed at least ninety days prior to the expiration date of the 

10 order. Xo interim renewal of an order may remain in effect 

11 for longer than one hundred and eighty days. 

12 "(2) An application for a temporary order under this 

13 subsection shall contain — 

14 " (A) a specification of the standard and/or portion 

15 thereof from which the employer seeks a noncompliance 

16 order. 

IT " (B) a representation by the operator, supported by 

18 representations from qualified persons having firsthand 

19 knowledge of the facts represented, that he is unable to 

20 comply with the standard or portion thereof and a de- 

21 tailed statement of the reasons therefor, 

22 " (G) a statement of the steps he has taken and will 
-o take (with specific dates) to protect miners against the 

24 hazards covered by the standard, 

25 " (D) a statement of when he expects to be able to 



202 



15 

1 comply with the standard and what steps he has taken 

2 and what steps he will take (with dates specified) to 

3 come into compliance with the standard, and 

4 " (E) a certification that he lias informed his em- 

5 ployees of the application hy giving a copy thereof to 
(i their authorized representative, posting a statement giv- 

7 ing a summary of the application and specifying where a 

8 copy may lie examined at the place or places where no- 

9 tices to employees are normally posted, and hy other 

10 appropriate means. 

11 A description of how employees have been informed shall 

12 be contained in the certification. The information to em- 

13 ployees shall also inform them of their right to petition the 

14 Secretary for a hearing. 

15 "(e) Any affected operator may apply to the Secretary 

16 for an order for a variance from a standard promulgated 

17 under this section. Affected miners and their representative 

18 shall be given notice of each such application and an oppor- 

19 tunity to participate in a hearing. The Secretary shall issue 

20 an order if he determines on the record, after opportunity for 

21 an inspection where appropriate and a public hearing, that 
'22 the proponent of the variance has demonstrated by a pre- 

23 ponderance of the evidence that the conditions, practices, 

24 means, methods, operations, or processes used or proposed 

25 to be used by an operator will provide employment and 



203 



16 

1 places of employment to his employees which are as safe 

2 and healthful as those which would prevail if he complied 

3 with the standard. The order so issued shall prescribe the 

4 conditions the operator must maintain, and the practices, 

5 means, methods, operations, and processes which he must 

6 adopt and utilize to the extent they differ from the standard 

7 in question. Such order may be modified or revoked upon 

8 application by an operator, miner, representative of miners 

9 or by the Secretary, in the manner prescribed for its issuance 

10 under this subsection. 

11 "(f) The provisions of subsections (d) and (e) shall not 

12 apply with respect to any standard enacted by title II of this 

13 Act and in effect on the date immediately prior to the effec- 

14 tive date of the Federal Mine Safety and Health Amend- 

15 ments Act of 1976 or to any standard promulgated pursuant 

16 to that title prior to such date. 

17 "(g) Any person who may be adversely affected by a 

18 standard issued under this section may, at any time prior to 

19 the sixtieth day after such standard is promulgated, file a 

20 petition challenging the validity of such standard with the 

21 United States court of appeals for the District of Columbia 

22 circuit or the circuit wherein such person resides or has his 

23 principal place of business, for a judicial review of such 

24 standard. A copy of the petition shall be forthwith trans- 

25 mitted by the clerk of the court to the Secretary. The filing 

20-040 O - 78 - 14 



204 



17 

j of such petition shall not, unless otherwise ordered by the 

2 court, operate as a stay of the standard. No objection that 

o lias not been urged before the Secretary shall be considered 

4 by the court, unless the failure or neglect to urge such 

r objection shall be excused because of extraordinary circum- 

q stances. The procedures ol this section shall be the exclusive 

» means ol challenging the validity of a standard. 

fi "advisory committees 

g "8ml 103. (a) The Secretary may appoint advisory 

j () committees to assist him in his standard setting functions 

H under section 102(a) of this Act, and to advise him on 

-jo other matters relating to safety and health in mines. Each 

23 such advisory committee may include as a member one 

-I I or more designees of the Secretary of Health, Education, 

jg and Welfare, the National Bureau of Standards, Department 

16 of Commerce, and the National Science Foundation, and 

17 shall include among its members persons qualified by experi- 

18 ence and affiliation to present the viewpoint of operators of 

19 such mines and an equal number of persons similarly quali- 
<>0 fled to present the viewpoint of workers in such mines, as 
.>! well as one or more representatives of mine inspection or 
').) safety agencies of the States. An advisory committee may 
•>o, also include such other persons as the Secretary may appoint 
o^ who are qualified by knowledge and experience to make a 
•V, useful contribution to the work of such committee, including 



205 



18 

1 one or more representatives of professional organizations of 

2 technicians or professionals specializing in safety or health, 

3 but the number of persons so appointed to any such advisory 

4 committee shall not exceed the number appointed to such 

5 committee as representatives of Federal and State agencies. 

6 Any meeting of such committee shall be open to the public 

7 and an accurate record shall be kept and made available to 

8 the public. No member of such committee (other than rep- 

9 resentatives of operators and miners) shall have an economic 

10 interest in any proposed rule. 

11 " (b) Persons appointed to advisory committees from 

12 private life shall be compensated in the same manner as 

13 consultants or experts under section 3109 of title 5, United 

14 States Code. The Secretary shall pay to any State which 

15 is the employer of a member of such committee reimbursc- 

16 ment sufficient to cover the actual costs to the State resulting: 

17 from such representatives' membership on such committee. 

18 "INSPECTIONS, INVESTIGATIONS, AND RECOBDKEEPING- 

19 "Sec. 104. (a) In order to carry out the purposes of 

20 this Act, the Secretary or the Secretary of Health, Educa- 

21 tion, and Welfare, or an authorized representative of either, 

22 upon presenting appropriate credentials to the owner, opor- 

23 ator, or agent in charge, is authorized — 

24 "(1) to enter without delay any mine subject to 

25 this Act; and 



206 



19 

1 "(2) to inspect and investigate any mine and all 

2 pertinent conditions, structures, machines, apparatus, de- 

3 vices, equipment, records, and materials therein, and to 

4 consult privately with any such operator, owner, agent, 

5 or miner. In carrying out the requirements of this sec- 
G tion in each mine, the Secretary shall make inspections 

7 of the entire mine at least four times a year. Advance 

8 notice of any inspection shall not he given, except that 

9 the Secretary of Health, Education, and Welfare may 
in 8* ve R dvanced notice of inspections conducted in connec- 

11 tion with or for the purpose of research or technical 

12 assistance. 

-o " (b) In making his investigations of accidents or other 

14 occurrences relating to health or safety in a mine under 

^ this Act, the Secretary may require the attendance and testi- 

-IP mony of witnesses and the production of evidence under 

17 oath. Witnesses shall be paid the same fees and mileage that 

-.Q are paid witnesses in the courts of the United States. In 

1Q case of a contumacy, failure, or refusal of any person to 

90 obey such an order, any district court of the United States 

91 or the United States courts of any territory or possession, 
oo within the jurisdiction of which such person is found, resides, 
2 o or transacts business, upon the application by the Sccre- 
24 tai T> sna N nave jurisdiction to issue such person an order 
05 requiring such person to appear to produce evidence if, as, 



207 



20 

1 and when so ordered, and to give testimony relating to 

2 the matter under investigation or in question, and any failure 

3 to obey such order of the court may be punished by said 

4 court as a contempt thereof. 

r> " (c) (1) Each operator shall make, keep and preserve, 

(,' and make available to the Secretary or the Secretary of 

7 Health, Education, and Welfare, such records regarding his 

8 activities relating to this Act as the Secretary, in coopera- 

9 tion with the Secretary of Health, Education, and Welfare, 

10 may prescribe by regulation as necessary or appropriate 

1 1 for the enforcement of this Act or for developing informa- 

12 tion regarding the causes and prevention of occupational 

13 accidents and illnesses in the mines subject to this Act. In 

14 order to carry out the provisions of Ihis paragraph such 

15 regulations may include provisions requiring operators to 
M] conduct periodic inspections. 

17 "(2) The Secretary, in cooperation with the Secretary 

18 of Health, Education, and Welfare, shall prescribe regulations 

19 requiring operators to maintain accurate records of and to 

20 make periodic reports on, work-related deaths, injuries, and 

21 illnesses other than minor injuries requiring only first aid 

22 treatment and which do not involve medical treatment, loss 
2:> of consciousness, restriction of work or motion, or transfer to 
24 another job in the mines subject to this Act. 

2f> "(3) The Secretary, in cooperation with the Secretary 



208 



21 

1 of Ilealth, Education, and Welfare, shall issue regulations 

2 requiring operators to maintain accurate records of employee 

3 exposures to potentially toxic materials or harmful physical 

4 agents which are required to be monitored or measured under 

5 any applicable health and safety standard promulgated under 
0* this Act. Such regulations shall provide miners or their repre- 

7 sentatives with an opportunity to observe such monitoring or 

8 measuring, and to have access to the records thereof. Such 

9 regulations shall also make appropriate provision for each 

10 miner or former miner to have access to such records as will 

1 1 indicate his own exposure to toxic materials or harmful physi- 

12 cal agents. Each operator shall promptly notify any miner 

13 who has been or is being exposed to toxic materials or harm- 

14 ful physical agents in concentrations or at levels which exceed 

15 those prescribed by an applicable health and safety standard 

16 promulgated under section 102, or mandated under title II, 

17 and shall inform any miner who is being thus exposed of the 

18 corrective action being taken. 

19 "(4) All accidents, including unintentional roof falls 

20 (except in any abandoned panels or in areas which are 

21 inaccessible or unsafe for inspections), shall be investigated 

22 by the operator or his agent to determine the cause and 

23 the means of preventing a recurrence. Records of such acci- 

24 dents, roof falls, and investigations shall be kept and the 

25 information shall be made available to the Secretary or his 



209 



22 

1 authorized representative and the appropriate State agency. 

2 Such records shall be open for inspection by interested 

3 persons. 

4 (d) Any information obtained by the Secretary, or by 

5 the Secretary of Health, Education, and Welfare under this 

6 Act shall be obtained in such a manner as to impose a mini- 

7 mum burden upon operators, especially those operating small 

8 business consistent with the underlying purposes of this Act. 

9 Unnecessary duplication of effort in obtaining information 

10 shall be reduced to the maximum extent feasible. 

11 "(e) Subject to regulations issued by the Secretary, a 

12 representative of the operator and a representative au- 

13 thorized by his miners shall be given an opportunity to 

14 accompany the Secretary or his authorized representative 

15 during the physical inspection of any mine under sub- 

16 section (a) for the purpose of aiding such inspection. Where 

17 there is no authorized miner representative, the Secretary or 

18 his authorized representative shall consult with a reason- 

19 able number of miners concerning matters of health and 

20 safety in the mine. Such representative of miners who is 

21 also an employee of the operator shall suffer no loss of pay 

22 as a result of his participation in the physical inspection made 

23 under this subsection. To the extent that the inspector detcr- 

24 mines that more than one representative from each party 

25 would further aid the inspection, he can permit each party 



210 



23 

1 ro have an equal number of such additional representatives. 

2 However, only one such representative of miners who is 

3 an employee of the operator shall be entitled to suffer no loss 

4 of pay as a result of such participation under the provision 
9 of this subsection. Compliance with this subsection shall not 

6 be a jurisdictional prerequisite to the enforcement of any pro- 

7 vision of this Act. 

8 "(f) (1) Any miners or representatives of miners who 

9 believe that a violation of a health or safety standard 

10 exists that threatens harm, or that an imminent danger 

11 exists, may request an inspection by giving notice to the 

12 Secretary or his authorized representative of such violation 

13 or danger. Any such notice shall be reduced to writing, shall 

14 set forth with reasonable particularity the grounds for the 

15 notice, and shall be signed by the miners or representative 

16 of miners, and a copy shall be provided the operator or his 

17 agent at the time of inspection, except that, upon the request 

18 of the person giving such notice, his name and the names 

19 of individual miners referred to therein shall not appear in 

20 such copy or on any record published, released, or made 

21 available pursuant to subsection (g) of this section. If upon 

22 receipt of such notification the Secretary determines there 

23 are reasonable grounds to believe that such violation or dan- 

24 ger exists, he shall make a special inspection in accordance 

25 w ith the provisions of this section as soon as practicable, to 



211 



24 

1 determine if such violation or danger exists. If the Secretary 

2 determines there are no reasonable grounds to believe that a 

3 violation or danger exists he shall notify the miners and 

4 representative of the miners in writing of such determination. 

5 " (2) Prior to or during any inspection of a mine, any 

6 miners or representatives of miners employed in such mine 

7 may notify the Secretary or any representative of the Sec- 

8 retary responsible for conducting the inspection, in writing, 

9 of any violation of this Act or of an} 7 imminent danger 

10 which they have reason to believe exists in such mine. The 

11 Secretary shall, by regulation, establish procedures for in- 

12 formal review of any refusal by a representative of the Sccre- 

13 tary to issue a citation with respect to any such alleged 

14 violation or order with respect to such danger and shall 

15 furnish the miners or representative of miners requesting 

16 such review a written statement of the reasons for the Sec- 

17 retary's final disposition of the case. 

18 " (g) (1) The Secretary and Secretary of Health, Edu- 

19 cation, and Welfare are authorized to compile, analyze, and 

20 publish, cither in summary or detailed form, all reports or 

21 information obtained under this section. 

22 " (2) The Secretary and the Secretary of Health, Edu- 

23 cation, and Welfare shall each prescribe such rules and regu- 

24 lations as they may deem necessary to carry out their respon- 



212 



25 

1 sibilities under this Act, including rules and regulations 

2 dealing with the inspection of mines subject to this Act. 

3 " (h) Whenever the Secretary finds that a mine liberate! 

4 excessive quantities of methane or other explosive pises dur- 

5 ing its operations, or that a methane or other gas ignition or 

6 explosion lias occurred in such mine which resulted in death 

7 or serious injury at any time during the previous five years, or 

8 that there exists in such mine some other especially hazardous 

9 condition, he shall provide a minimum of one spot inspection 

10 by his authorized representative of all or part of such mine 

11 during every live working days at irregular intervals. 

12 For purposes of this subsection, liberation of excessive quan- 

13 tities of methane or other explosive gases shall mean liberation 
11 of more than one million cubic feet of methane or other 

15 explosive gases during a twenty-four hour period: Provided, 

16 however, That when the Secretary finds that a mine liberates 

17 more than five hundred thousand cubic feet of methane or 

18 other explosive gases during a twenty-four hour period, 

19 he shall provide a minimum of one spot inspection by his 

20 authorized representative of all or part of such mine every 

21 ten working days at irregular intervals; Provided further, 

22 That when the Secretary finds that a mine liberates more 

23 than two hundred thousand cubic feet of methane or other 

24 explosive gases during a twenty-four hour period, he shall 



213 



26 

1 provide a minimum of one spot inspection by his authorized 

2 representative of all or part of such mine ever} 7 fifteen work- 

3 ing days at irregular intervals. 

4 " (i) In the event of any accident (whether or not 

5 resulting in an injury or death) occurring in a mine, the 

6 operator shall promptly notify the Secretary thereof and 

7 shall take appropriate measures to prevent the destruction 

8 of any evidence which would assist in investigating the 

9 cause or causes thereof. In the event of any accident oc- 

10 curring in a mine where rescue and recovery work is 

11 necessary, the Secretary or an authorized representative of 

12 the Secretary shall take whatever action he deems appro- 

13 priate to protect the life of any person, and he may, if he 

14 deems it appropriate, supervise and direct the rescue and 

15 recovery activity in such mine. 

16 " (j) In the event of any accident occurring in a mine, 

17 an authorized representative of the Secretary, when present, 

18 may issue such orders as he deems appropriate to insure 

19 the safety of any person in the mine, and the operator of 

20 such mine shall obtain the approval of such representative, 

21 in consultation with appropriate State representatives, when 

22 feasible, of any plan to recover any person in the mine or 

23 to recover the mine or return affected areas of the mine 

24 to normal. 



214 



27 

1 "citations and orders 

2 "Sec. 105. (a) (1) If, upon inspection or investiga- 

3 tion, the Secretary or bis authorized representative believes 

4 that an operator of a mine subject to this Act has violated 

5 this All, or ruiy rule, order, or regulation promulgated 

6 pursuant to this Act, he shall, with reasonable promptness, 

7 issue a citation to the operator. Each citation shall be in 

8 writing and shall describe with particularity the nature of 

9 the violation, including a reference to the provision of the 

10 Act, standard, rule, regulation, or order alleged to have 

11 been violated. In addition, the citation shall fix a reason- 

12 able time for the abatement of the violation. 

13 " (2) If a citation under section 105 (a) ( 1 ) is issued for 

14 a violation which the Secretary or his authorized representa- 

15 tive believes to have been willfully committed, or committed 

16 with gross negligence, and to have subjected a miner or 
1? miners to an imminent danger, the Secretaiy or his author- 
18 ized representative shall include in the citation a charge that 
1& the violation was willfully committed, or committed with 

20 gross negligence, and that it subjected a miner or miners to 

21 an imminent danger, with a specific description of the danger 

22 or dangers involved. 

23 "(b) If upon any followup inspection of a mine, an 

24 authorized representative of the Secretary finds (1) that a 
2 -> violation described in a citation issued pursuant to subsection 



215 



28 

1 (a) has not been totally abated within the period of time 

2 as originally fixed therein or as subsequently extended, and 

3 (2) that the period of time for the abatement should not be 

4 further extended, he shall find the extent of the area affected 

5 by the violation and shall promptly issue an order requiring 

6 the operator of such mine or his agent to immediately cause 

7 all persons to be withdrawn from, and to be prohibited from 

8 entering such area until an authorized representative of the 

9 Secretary determines that such violation has been abated, 

10 except the following persons : 

11 "(1) Any person whose presence in such area is 

12 necessary, in the judgment of the operator of the mine, 

13 or an authorized representative of the Secretary, to 
1^ eliminate the danger described in order; 

15 "(2) Any public official whose official duties re- 

1® quire him to enter such area ; or 

17 " (3) Any legal or technical consultant, or any rep- 

!8 resentative of the employees of the mine, who is a cer- 

19 tified person qualified to make mine examinations, or is 

20 accompanied by such a person, and whose presence in 

21 such area is necessary, in the judgment of the operator 

22 of the mine or an authorized representative of the Sec- 

23 retary, for the proper investigation of the conditions 
•^ described in the order. 

25 "(c) (1) In the case of a violation of any safety or 



216 



20 

1 health standard which is of such nature as could significantly 

2 and substantially contribute to the cause and effed of a mine 

3 safety or health hazard, and which is caused by an unwar- 

4 ranted failure of >uch operator to comply with such safety 

5 or health standards the citation shall include a statement to 

6 that eflect. If. during the same inspection or any subsequent 

7 inspection of such mine within ninety days after the issuance 

8 of such citation, an authorized representative of the Secretary 

9 finds another violation of any safety or health standard and 

10 finds such violation to he aho caused by an unwarranted 

11 failure of such operator to BO comply, he -hall forthwith issue 

12 an order requiring the operator to cause all persons in the 

13 area affected by such violations, except those person^ referred 

14 to in suhsection (h) of thifl section, to he withdrawn from, 

15 and to he prohibited from entering, such area until an author- 

16 ized representative of the Secretary determines that such 

17 violation has heen ahated. 

18 "(2) If a withdrawal order with respect to any area 

19 in a mine has been issued pursuant to paragraph ( 1 ) of this 

20 subseetion, a withdrawal order shall promptly be issued by 

21 an authorized representative of the Secretary who finds upon 

22 any subsequent inspection the existence in the mine of 

23 other unwarranted violations until such time as an inspec- 

24 tion of such mine discloses no such violations. Following an 

25 inspection of the mine which discloses no unwarranted viola- 



217 



30 

1 tions, the provisions of paragraph (1) of this subsection 

2 shall again be applicable to that mine. 

3 " (d) During the abatement period for a violation of the 

4 applicable limit on the concentration of respirable dust, the 

5 operator of the mine shall cause samples described in section 

6 202(a) of this Act to be taken of the affected area during 

7 each production shift. 

8 "As soon as possible after an order relating to failure to 

9 abate excessive dust concentrations is issued, the Secre- 

10 tary, upon request of the operator, shall dispatch to the mine 

11 involved a person or team of persons, to the extent such 

12 persons are available, who are knowledgeable in the methods 

13 and means of controlling and reducing respirable dust. Such 

14 person or team of persons shall remain at the mine involved 

15 for such time as they shall deem appropriate to assist the 

16 operator in reducing respirable dust concentration. While 

17 at the mine, such persons may require the operator to take 

18 such actions as the} 7 deem appropriate to insure the health 

19 of any person in the mine. 

20 "(e) (1) If, upon any inspection or investigation pur- 
2i suant to section 104 of this Act, the Secretary or an author- 

22 ized representative shall find employed at a mine a miner 

23 who has not received the requisite safety training under sec- 

24 tion 317A of this Act, the Secretary or an authorized repre- 

25 sentative shall issue an order under this section which declare 



218 



31 

1 such miner to be a hazard to himself and to others, and 

2 requiring that such miner be immediately withdrawn from 
:\ the mine, and be prohibited from entering the mine until an 
4 authorized representative of the Secretary determines that 
r> such miner has received the training required by section 
G 317 A of this Act. 

7 " (2) No miner who is ordered withdrawn from a mine 

8 under paragraph ( 1 ) of this subsection shall be discharged 
or otherwise discriminated against because of such order; 

JO and no miner who is ordered withdrawn from a mine under 

] l paragraph ( 1 ) of this subsection shall suffer a loss of com- 

32 pensation during the period necessary for such miner to 

13 receive such training and for an authorized representative 

14 of the Secretary to determine that such miner has received 

15 the requisite training. 

16 " (f) Each citation or order issued under this section, or 

17 a copy or copies thereof, shall be prominently posted in 

18 accordance with section 110 of this Act, and as prescribed in 

19 regulations issued by the Secretary. 

20 " (g) Xo citation may be issued under this section after 

21 the expiration of six months following the occurrence of any 

22 violation. 

23 ■" (h) Any order issued under subsection (b) or (c) 

24 shall remain in effect until revoked by the Secretary or modi- 



219 



1 fied or vacated by the Commission or the courts pursuant to 

2 section 106(c) or 107(a). 

3 "PROCEDURE FOR ENFORCEMENT 

4 "Sec. 106. (a) If, after an inspection or investigation 

5 the Secretary issues a citation or order under section 105, 

6 he shall, within a reasonable time after the termination of 

7 such inspection or investigation, notify the operator by cer- 

8 tified mail of the civil penalty proposed to be assessed under 

9 section 111 (a) for the violation cited and that the operator 

10 has fifteen working days within which to notify the Secretary 

11 that he wishes to contest the citation or proposed assessment 

12 of penalty. If the citation contains a charge under section 

13 105(a) (2), the Secretary's notification under the subsec- 

14 tion shall include a proposed civil penalty closure order 

15 under section 111(d) in addition to the proposed civil 

16 monetary penalty. If, within fifteen working days from the 

17 receipt of the notice issued by the Secretary, the operator 

18 fails to notify the Secretary that he intends to contest the 

19 citation or the proposed penalty or penalties, and no notice 

20 is filed by any employee or representative of employees 
2i under subsection (c) of this section within such time, the 

22 citation and the penalty or penalties, as proposed, shall be 

23 deemed a final order of the Commission and not subject to 
04 review by any court or agency. Refusal by the operator or 
25 his agent to accept certified mail containing a notice under 

n ■ ; 

20-040 O - 78 - 15 



220 



1 this subsection shall constitute receipt thereof within the 

2 meaning of this subsection. 

3 "(b) If the Secretary has reason to believe that an oper- 

4 ator has failed to correct a violation for which a citation has 

5 been issued within the period permitted for its correction 

6 (which period shall not end until the entry of a final order by 

7 the Commission, in the case of any review proceedings under 

8 this section initiated by the operator wherein the Commission 

9 orders, after an expedited hearing, the suspension of the 

10 abatement requirements of the citation after determining that 

11 the operator will suffer irreparable loss or damage from the 

12 application of those requirements) , the Secretary shall notify 

13 the operator by certified mail of such failure and of the 

14 penalty proposed to be assessed under section 111 by reason 

15 of such failure, and that the operator has fifteen working 

16 days within which to notify the Secretary that he wishes to 

17 contest the Secretary's notification or the proposed assessment 

18 of penalty. If, within fifteen working days from the receipt of 

19 notification issued by the Secretary, the operator fails to 

20 notify the Secretary that he intends to contest the notification 

21 or proposed assessment of penalty, the notification and assess- 

22 ment, as proposed, shall be deemed a final order of the Com- 

23 mission and not subject to review by any court or agency. 

24 Refusal by the operator or his agent to accept certified mail 

25 containing a notification issued under this subsection shall 



221 



34 

1 constitute receipt thereof within the meaning of this 

2 subsection. 

3 1 > ■: person shall discharge or in any manner 

4 discriminate against or interfere with the exercise of the 

5 statutory rights of any mine employee or applicant for em- 

6 ployment subject to this Act because such employee has filed 

7 or made a complaint under or related to this Act. including 

8 a complaint notifying the operator or the operator's agent, 

9 or the employee's labor or health and safety representative 

10 of an alleged danger or safety or health violation in the mine. 

11 or because such employee is the subject of medical evalua- 
:ions and potential transfer under a standard published pur- 

13 suant to section K>2(a) of thi- Act. or because such 

14 employee has instituted or caused to be instituted any pro- 
l" eeeding under or related to this Act or has testified or is 
16 about to testify in any such proceeding, or because of the 
IT i by such employee on behalf of himself or others oi 

18 any statutory right arlorded by this Act. 

19 _ Any mine employee or applicant for employment 

20 who believes that he has been discharged, interfered with, 

21 or otherwise discriminated against by any person in viola- 

22 tion of this subsection may. within thirty days after such 

23 violation occurs, file a complaint with the Secretary alleging 
A >»ch discrimination. Tpon receipt of such complaint, the 
25 Secretary shall cause such investigation to be made as he 



222 



35 

1 deems appropriate. If upon such investigation, the Secre- 

2 tary determines that the provisions of this subsection have 

3 been violated, he shall immediately file a complaint with the 

4 Commission, with service upon the alleged violator and the 

5 mine employee or applicant for employment, alleging such 

6 discrimination or interference and proposing an order grant- 

7 ing appropriate relief. The Commission shall afford an op- 

8 portunity for a hearing (in accordance with section 554 of 

9 title 5, United States Code, but without regard to subsection 

10 (a) (H) of such section) and thereafter shall issue an order. 

11 based upon findings of fact, affirming, modifying, or vacating 

12 the Secretary's proposed order, or directing other appropri- 

13 ate relief; and such order shall become final thirty days after 

14 its issuance. The Commission shall have authority in such 

15 proceedings to require a person committing a violation of 

16 this subsection to take such affirmative action to abate the 

17 violation as the Commission deems appropriate, including, 

18 but not limited to, the rehiring or reinstatement of the 

19 employee to his former position with back pay and interest. 

20 The complaining employee or applicant may present addi- 

21 tional evidence on his own behalf during any hearing held 

22 pursuant to this paragraph. 

23 " "(3) Within ninety days of the receipt of a complaint 

24 filed under paragraph (2) of this subsection, the Secretary 

25 shall notify the mine employee or applicant for employment, 



223 



36 

1 in writing, of his determination whether a violation has oc- 

2 curred. If the Secretary, upon investigation, determines that 

3 the provisions of this subsection have not been violated, the 

4 . complainant shall have the right, within thirty days of notice 

5 of the Secretary's determination, to file an action in his own 

6 behalf before the Commission, charging discrimination or 

7 interference in violation of paragraph ( 1 ) of this subsection. 

8 The Commission shall afford an opportunity for a hearing 

9 (in accordance with section 554 of title 5, United States 

10 Code, but without regard to subsection (a) (3) of such sec- 

11 tion) , and thereafter shall issue an order, based upon find- 

12 ings of fact, dismissing or sustaining the complainant's 

13 charges and, if the charges are sustained, granting such relief 

14 as it deems appropriate, including, but not limited to, an 

15 order requiring the rehiring or reinstatement of the mine 

16 employee or applicant for employment to his former position 

17 with back pay and interest. Such order shall become final 

18 thirty days after its issuance. Whenever an order is issued 

19 sustaining the employee's charges under this paragraph, a 

20 sum equal to the aggregate amount of all costs and expenses 

21 (including attorney's fees) as determined by the Commis- 

22 sion to have been reasonably incurred by the mine employee 

23 or applicant for employment for, or in connection with, the 

24 institution and prosecution of such proceedings shall be 

25 assessed against the person committing such violation. Pro- 



224 



37 

1 eeedings under this section shall be expedited by the Secre- 

2 tary and the Commission. Any order issued by the Commis- 

3 sion under this paragraph shall be subject to judicial review 

4 in accordance with section 107 of this Act. Violations by any 

5 person of paragraph (1) of this subsection shall be subject 
(j to the provisions oi section 10i) and 111 (a) of this title.". 
7 "(d) U, within fifteen working days of receipt thereof, 
3 an operator oi' a mine notifies the Secretary that he intends to 
9 contest the issuance or modification of an order issued under 

10 section 105, or a notification issued under subsection (a) or 

11 (b) of this lection, or the reasonableness of the length of 

12 abatement time fixed in a citation or modification thereof 

13 issued under section 105, or any miner or representative of 

14 miners notifies the Secretary of an intention to contest the 

15 issuance, modification, or termination of any order issued 

16 under section L05, or the reasonableness of the length of time 

17 set for abatement by a citation or modification thereof issued 

18 under section 105, the Secretary shall immediately advise 

19 the Commission of such notification, and the Commission 

20 shall afford an opportunity for a hearing (in accordance with 

21 section 554 of title 5, United States Code, but without regard 

22 to subsection (a) (3) of such section), and thereafter shall 

23 issue an order, based on findings of fact, affirming, modifying, 

24 or vacating the Secretary's citation, order, or proposed pen- 

25 alty, or directing other appropriate relief; such order shall 



225 



38 

1 become final thirty days after its issuance. The rules of proce- 

2 dure prescribed by the Commission shall provide affected 

3 miners or representatives of affected miners an opportunity 

4 to participate as parties to hearings under this section. The 

5 Commission shall take whatever action is necessary to 

6 expedite proceedings for hearing appeals of orders issued 

7 under section 105. The Commission may not grant temporary 

8 relief from the issuance of any order under subsection 105 (c) 

9 of this Act. 

10 "judicial review 

11 "Sec. 107. (a) Any person adversely affected or ag- 

12 grieved by an order of the Commission issued under this Act 

13 may obtain a review of such order in any United States court 

14 of appeals for the circuit in which the violation is alleged to 

15 have occurred or where the operator has its principal office, 

16 or in the United States Court of Appeals for the District 

17 of Columbia Circuit, by filing in such court within thirty 

18 days following the issuance of such order a written petition 

19 praying that the order be modified or set aside. A copy of 

20 such petition shall be forthwith transmitted by the clerk of 

21 the court to the Commission and to the other parties, and 

22 thereupon the Commission shall file in the court the record 

23 in the proceeding as provided in section 2112 of title 28, 

24 United States Code. Upon such filing, the court shall have 

25 exclusive jurisdiction of the proceeding and of the question 



226 



39 

1 determined therein, and shall have power to grant such tem- 

2 porary relief or restraining order as it deems just and proper, 

3 and to make and enter upon the pleadings, testimony, and 

4 proceedings set forth in such record a decree affirming, modi- 

5 fying, or setting aside, in whole or in part, the order of the 

6 Commission and enforcing the same to the extent that such 

7 order is affirmed or modified. The commencement of proceed- 

8 ings under this subsection shall not, unless ordered by the 

9 court, operate as a stay of the order of the Commission. No 

10 objection that has not been urged before the Commission 

11 shall be considered by the court, unless the failure or neglect 

12 to urge such objection shall be excused because of extraordi- 
lo nary circumstances. The findings of the Commission with re- 

14 spect to questions of fact, if supported by substantial evidence 

15 on the record considered as a whole, shall be conclusive. If 

16 any party shall apply to the court for leave to adduce addi- 

17 tional evidence and shall show to the satisfaction of the court 

18 that such additional evidence is material and that there were 

19 reasonable grounds for the failure to adduce such evidence in 

20 the hearing before the Commission, the court may order such 

21 additional evidence to be taken before the Commission and 

22 to be made a part of the record. The Commission may modify 

23 its findings as to the facts, or make new findings, by reason 

24 of additional evidence so taken and filed, and it shall file 

25 such modified or new findings, which findings such respect 



227 



40 

1 to question of fact, if supported by substantial evidence on 

2 the record considered as a whole, shall be conclusive. The 

3 Commission may modify or set aside its original order 

4 by reason of such modified or new findings of fact. Upon 

5 the filing of the record with it, after such remand proceedings, 

6 the jurisdiction of the court shall be exclusive and its judg- 

7 ment and decree shall be final, except that the same shall be 

» 

3 subject to review by the Supreme Court of the United States, 

9 as provided in section 1254 of title 28, United States Code. 

10 Petitions filed under this subsection shall be heard expedi- 

11 tiously. 

12 " (b) The Secretary may also obtain review or enforce- 

13 ment of any final order of the Commission by filing a 

14 petition for such relief in the United States court of appeals 

15 for the circuit in which the alleged violation occurred or 

16 in which the operator has its principal office or in the Court 

17 of Appeals for the District of Columbia Circuit, and the pro- 

18 vision of subsection (a) shall govern such proceedings to 

19 the extent applicable. If no petition for review, as provided 

20 in subsection (a) , is filed within thirty days after issuance 

21 of the Commissioner's order, the Commission's findings of 

22 fact and order shall be conclusive in connection with any 

23 petition for enforcement which is filed by the Secretary 

24 after the expiration of such thirty-day period. In any such 

25 case, as well as in the case of a noncontested citation or 



228 



41 

1 notification by the Secretary which has become a final order 

2 of the Commission under subsection (a) or (b) of section 

3 106, the clerk of the court, unless otherwise ordered by the 

4 court, shall forthwith enter a decree enforcing the order and 

5 shall transmit a copy of such decree to the Secretary and the 

6 operator named in the petition. In any contempt proceeding 

7 brought to enforce a decree of a court of appeals entered 

8 pursuant to this subsection or subsection (a), the court 

9 of appeals may assess the penalties provided in section 

10 111, in addition to invoking any other available remedies. 

11 "PBOCBDUBBS TO COUNTERACT DANGEBOUS CONDITIONS 

12 "Sec. 108. (a) If, upon any inspection or investigation 

13 of a mine which is subject to this Act, an authorized repre- 

14 sentative of the Secretary finds that conditions of practices 

15 in such mine are such that an imminent danger exists, such 

16 representative shall determine the extent of the area of such 

17 mine throughout which the danger exists, and issue an order 

18 requiring the operator of such mine to cause all persons, 

19 except those referred to in section 105 (b) , to be withdrawn 

20 from, and to be prohibited from entering, such area until 

21 an authorized representative of the Secretary determines that 

22 such imminent danger no longer exists. The issuance of an 

23 order under this subsection shall not preclude the issuance 

24 of a citation under section 105 or the proposing of a penalty 

25 under section 111. 






229 



42 

1 "(b) (1) If, upon any inspection or investigation of a 

2 mine, an authorized representative of the Secretary finds 

3 (A) that potentially dangerous conditions exist therein 

4 which have not yet resulted in an imminent danger, (B) 

5 that such conditions cannot be effectively abated through 

6 the use of existing technology, and (C) that reasonable 

7 assurance cannot be provided that the continuance of mining 

8 operations under such conditions will not result in an im- 

9 minent danger, he shall determine the area throughout which 

10 such conditions exist, and thereupon issue a notice to the 

11 operator of the mine or his agent of such conditions, and shall 

12 file a copy thereof, incorporating his findings therein, with 

13 the Secretary and with the representatives of the miners of 

14 such mine. Upon receipt of such copy, the Secretary shall 

15 cause such further investigation to be made as he deems 

16 appropriate, including an opportunity for the operator or a 

17 representative of the miners to present information relating 

18 to such notice. 

19 "(2) Upon the conclusion of such investigation and an 

20 opportunity for a public hearing upon request by any inter- 

21 ested party, the Secretary shall make findings of fact, and 

22 shall, by decision incorporating such findings therein, either 

23 cancel the notice issued under this subsection or issue an 

24 order requiring the operator of such mine to cause all persons 

25 in the area affected, except those persons referred to in sec- 



230 



43 

1 tion 105 (b ) , to be withdrawn from, and be prohibited from 

2 entering, such area until the Secretary, after a public hearing 

3 affording all interested persons an opportunity to present 

4 their views, determines that such conditions have been 

5 abated. Any hearing under this paragraph shall be of record 

6 and shall be subject to section 554 of title 5 of the United 

7 States Code but without regard to subsection (a) (3). 

8 "(c) Findings and orders issued pursuant to subsection 

9 (a) of this section shall contain a detailed description of the 

10 conditions or practices which cause and constitute a situation 

11 of imminent danger, and all orders issued pursuant to this 

12 section shall contain a description of the area of the mine 

13 throughout which persons must be withdrawn and prohibited. 

14 "(d) Each finding made and order issued under this 

15 section shall be given promptly to the operator of the mine 

16 to which it pertains by the person making such finding or 

17 order, and all of such findings and orders shall be in writing, 

18 and shall be signed by the person making them. Any order 

19 issued pursuant to subsection (a) or (b) may be annulled, 

20 canceled, or revised by an authorized representative of the 
2i Secretary. Any order issued under subsection (a) or (b) 

22 shall remain in effect until revoked by the Secretary or 

23 modified or vacated by the Commission, or the courts pur- 

24 suant to section 107 (a) or 108 (e) . 

25 "(e) (1) Any operator notified of an order under this 



231 



44 

1 section or any representative of miners notified of the issu- 

2 ance, modification, or termination of such an order may apply 

3 to the Commission within ten days of such notification for 

4 annulment or revision of such order. The Commission shall 

5 forthwith afford an opportunity for a hearing (in accordance 

6 with section 554 of title 5, United States Code, but without 

7 regard to subsection (a) (3) of such section) and thereafter 
S shall issue an order, based upon findings of fact, vacating, 
9 affirming, modifying, or terminating the Secretary's order. 

10 The Commission may not grant temporary relief from the 

11 issuance of any order under subsection (a) of this section. 

12 "(2) The Commission shall take whatever action is 

13 necessary to expedite proceedings under this subsection. 

14 "injunctions 

15 "Sec. 109. (a) (1) The Secretary may institute a civil 

16 action for relief, including a permanent or temporary injunc- 

17 tion, restraining order, or any other appropriate order in the 

18 district court of the United States for the district in which a 

19 mine is located or in which the operator of such mine has 

20 his principal office, whenever such operator or his agent 

21 (a) violates or fails or refuses to comply with any order or 

22 decision issued under this Act, or (b) interferes with, hin- 

23 ders, or delays the Secretary or his authorized representative, 

24 or the Secretary of Health, Education, and Welfare or his 

25 authorized representative, in carrying out the provisions of 



232 



45 

1 the Act, or (c) refuses to admit such representatives to the 

2 mine, or (d) refuses to permit the inspection of the mine, or 

3 the investigation of an accident or occupational disease oc- 

4 curring in, or connected with, such mine, or (e) refuses to 

5 furnish any information or report requested by the Secretary 

6 or the Secretary of Health, Education, and Welfare in fur- 

7 therance of the provisions of this Act, or (f) refuses to per- 

8 mit access to, and copying of, such records as the Secretary 

9 or the Secretary of Health, Education, and Welfare deter- 

10 mines necessary in carrying out the provisions of this Act. 

11 "(2) The Secretary may institute a civil action for 

12 relief including permanent or temporary injunction, re- 
1^ straining order, or any other appropriate order in the 
14 district court of the United States for the district in which 
» the mine is located or in which the operator of such mine 
16 has his principal office whenever the Secretary believes that 
IT the operator of a mine is engaged in a pattern of violation 

18 of the health and safety standards of this Act, which in the 

19 judgment of the Secretary constitutes a continuing hazard 

20 to the health or safety of miners. 

21 "(b) In any action brought under subsection (a) of this 

22 section, the court shall have jurisdiction to provide such relief 

23 as may be appropriate. In the case of an action under sub- 

24 section (a) (2) , the court shall in its order require such as- 

25 surance or affirmative steps as it deems necessary to assure 



233 



46 

1 itself that the protection afforded to miners under this Act 

2 shall be provided by the operator. Temporary restraining 

3 orders shall be issued in accordance with rule 65 of the Fed- 

4 eral Rules of Civil Procedure, as amended, except that the 

5 time limit in such orders, when issued without notice, shall 

6 be seven days from the date of entry. Except as otherwise 

7 provided herein, any relief granted by the court to enforce 

8 an order under clause (a) of this section shall continue in 

9 effect until the completion or final termination of all proceed- 

10 ings for review of such order under this title, unless, prior 

11 thereto, the district court granting such relief sets it aside or 

12 modifies it. In any action instituted under this section to en- 

13 force an order or decision issued by the Commission or the 

14 Secretary after a public hearing in accordance with section 

15 554 of title 5 of the United States Code, the findings of the 

16 Commission or the Secretary, as the case may be, if sup- 

17 ported by substantial evidence on the record considered as 

18 a whole, shall be conclusive. 

19 "posting of notices, orders, and decisions 

20 "Sec. 110 (a) At each mine subject to this Act there 

21 shall be maintained an office with a conspicuous sign desig- 

22 nating it as the office of the mine, and a bulletin board at 

23 such office or at some conspicuous place near an entrance 

24 of the mine, in such manner that notices, orders, citations, 

25 and decisions required by law or regulation to be posted on 



234 



47 

1 the mine bulletin board may be posted thereon, be easily 

2 visible to all persons desiring to read them, and be protected 

3 against damage by weather and against unauthorized re- 

4 moval. A copy of any notice, order, citation, or decision re- 

5 quired by this Act to be given to an operator shall be de- 

6 livered to the office of the affected mine, and a copy shall 

7 be immediately posted on the bulletin board of such mine 

8 by the operator or his agent for not less than thirty days. 

9 "(b) The Secretary shall (i) cause a copy of any notice, 

10 order, citation, or decision required by this Act to be given 

11 to an operator to be mailed immediately to a representative 

12 of the miners in the affected mine, and (ii) cause a copy 

13 thereof to be mailed to the public official or agency of the 

14 State charged with administering State laws, if any, relating 

15 to health or safety in such mine. Such notice, order, citation, 

16 or decision shall be available for public inspection. 

17 "(c) In order to insure prompt compliance with any 

18 notice, order, citation, or decision issued under this Act. the 

19 authorized representative of the Secretary may deliver such 

20 notice, order, citation, or decision to an agent of the operator, 

21 and such agent shall immediately take appropriate measures 

22 to insure compliance with such notice, order, citation, or 

23 decision. 

24 " (d) Each operator of a mine subject to this Act shall 

25 file with the Secretary the name and address of such mine 



235 



48 

1 and the name and address of the person who controls or 

2 operates the mine. Any revisions in such names or addresses 

3 shall he promptly filed with the Secretary. Each operator 

4 of a mine subject to this Act shall designate a responsible 

5 official at such mine as the principal officer in charge of 
G health and safety at such mine, and such official shall receive 

7 a copy of any notice, order, citation, or decision issued 

8 under this Act affecting such mine. In any case, where the 

9 mine is subject to the control of any person not directly 

10 involved in the daily operations of the mine, there shall 

11 be filed with the Secretary the name and address of such 

12 person and the name and address of a principal official of 

13 such person who shall have overall responsibility for the 

14 conduct of an effective health and safety program at any 

15 mine subject to the control of such person, and such official 

16 shall receive a copy of any notice, order, citation, or de- 
^ cision issued affecting any such mine. The mere designation 

18 of a health and safety official under this subsection shall not 

19 be construed as making such official subject to any penalty 

20 under this Act. 

21 "penalties 

22 "Sec. 111. (a) The operator of a mine in which occurs 
2 ^ a violation of a provision of this Act or a safety or health 

24 standard prescribed by or under this Act, or any rule, order, 

25 or regulation promulgated pursuant to this Act, shall be 

20-040 O - 78 - 16 



236 



49 

1 assessed a civil penalty of not more than $10,000 for eaeh 

2 such violation. 

3 "(b) Any operator who fails to correct a violation for 

4 which a citation has been issued under section 105 (a) within 

5 the period permitted for its correction (which period shall 

6 not end until the entry of a final order by the Commission, 

7 in the case of any review proceedings under section 106 

8 initiated by the operator wherein the Commission orders, 

9 after an expedited hearing, the suspension of the abatement 

10 requirements of the citation after determining that the oper- 

11 ator will suffer irreparable loss or damage from the applica- 

12 tion of those requirements, or until the entry of an order of 

13 the court, in the ease of any review proceedings under sec- 

14 tion 107 initiated by the operator wherein the court orders 

15 the suspension of the abatement requirements of the cita- 

16 tion), may be assessed a civil penalty of not more than 

17 $1,000 for each day during which such failure or violation 

18 continues. 

19 "(c) Whenever a corporate operator violates a provision 

20 of this Act or a safety or health standard prescribed by or 

21 under this Act, or any rule, order, or regulation promulgated 

22 pursuant to this Act, any director, officer, or agent of such 

23 corporation who knowingly authorized, ordered, or carried 

24 out such violation shall be subject to the same civil penalties, 



237 



50 

1 fines, and imprisonment that may be imposed upon a person 

2 under subsection (a), (b), (e) , (f),or (g) of this section. 

3 "(d) Any operator who willfully, or with gross negli- 

4 gence, violates a provision of this Act or a safety or health 

5 standard prescribed by or under this Act, or any rule, order, 

6 or regulation promulgated pursuant to this Act, and thereby 

7 causes a miner or miners to be subjected to imminent danger, 

8 shall be subject to a civil penalty closure order by the Com- 

9 mission, which order shall: (i) order the mine closed for a 

10 specified period not to exceed thirty working days, (ii) pro- 

11 vide that the mine may not be reopened after such period 

12 except upon a subsequent order and finding by the Commis- 

13 sion that no unabated safety or health violations exist at such 

14 mine (except violations for which the period for abatement 

15 has not expired) , and (iii) provide that during the period of 

16 closure the operator shall pay the miners at their regular 

17 hourly rates for the hours they would have worked had the 

18 mine not been ordered closed, except any miner or miners 

19 found by the Commission to have willfully or with gross 

20 negligence contributed to the violation or violations which 

21 gave rise to the closure order. 

22 "(e) Any operator who willfully violates a provision of 

23 this Act or a safety or health standard prescribed by or under 

24 this Act, or any rule, order, or regulation promulgated pur- 

25 suant to this Act, shall, upon conviction, be punished by a 



238 



51 

1 fine of not more than 825,000 or by imprisonment for not 

2 more than one year, or by both ; exeept that if the conviction 

3 is for a violation committed after a first conviction of such 

4 person for any violation of this Act, punishment shall be a 

5 fine of not more than $50,000 or imprisonment for not more 

6 than five years, or both. 

7 "(f) Any person who gives advance notice of any 

8 inspection to be conducted under this Act shall, upon convic- 

9 tion, be punished by a fine of not more than $1,000 or by 

10 imprisonment for not more than six months, or by both. 

11 "(g) Whoever knowingly makes any false statement, 

12 representation, or certification in any application, record, 

13 report, plan, or other document filed or required to be main- 

14 tained pursuant to this Act shall, upon conviction, be 

15 punished by a fine of not more than $10,000, or by imprison- 

16 ment for not more than six months, or by both. 

17 " (h) Any operator who violates any of the posting re- 

18 quirements, as prescribed under the provisions of this Act, 

19 shall be assessed a civil penalty of up to $10,000 for each 

20 violation. 

21 "(i) Any miner who willfully violates the mandatory 

22 safety standards relating to smoking or the carrying of 

23 smoking materials, matches, or lighters shall be subject to a 

24 civil penalty assessed by the Commission of not more than 

25 $250 for each occurrence of such violation. 



239 



52 

1 " ( j ) ^Yhoever knowingly distributes, sells, offers for 

9 sale, introduces, or delivers in commerce any equipment for 

3 use in a mine, including, but not limited to, components 

4 and accessories of such equipment, which is represented as 

5 complying with the provisions of this Act, or with any spec- 

6 ification or regulation of the Secretary applicable to such 

7 equipment, and which does not so comply, shall, upon 
S conviction, be punished by a fine of not more than $25,000 
or by imprisonment for not more than one year, or by both. 

10 " (k) The Commission shall have authority to access 

11 all civil penalties and to issue all civil penalty closure orders 

12 provided in this Act. In assessing civil monetary penalties, 

13 the Commission shall give due consideration to the gravity 
of the violation, the good faith of the person charged, the 
history of previous violations, and the appropriateness of the 
penalty with respect to the size of the business of any mine 
operator being charged: Provided, That, in proposing civil 
penalties under this Act, the Secretary may rely upon a sum- 
mary review of the information available to him and shall 

90 

not be required to make findings of fact concerning the above 
factors. 

99 

" (1) Civil penalties owed under this Act shall be paid 
to the Secretary for deposit into the Treasury of the United 

94- 

States and shall accrue to the United States. 



240 



53 

1 "(hi) This section shall not he applicable with respect 

2 to title IV of this Act. 

3 "entitlement of mi neks 

4 "Sec. 112. If a mine or area of a mine is closed by 

5 an order issued under section 104, section 105, or section 

6 108 of this title, all miners working during the shift when 

7 such order was issued who are idled by such order shall be 

8 entitled, regardless of the result of any review of such order, 
i) to full compensation by the operator at their regular rates of 

10 pay for the period they are idled, but for not more than the 

11 balance of such shift. If such order is not terminated prior 

12 to the next working shift, all miners on that shift who are 

13 idled by such order shall be entitled to full compensation by 
1"* the operator at their regular rates of pay for the period they 
1* are idled, but for not more than four hours of such shift. If a 

16 mine or area of a mine is closed by an order issued under 

17 section 105 or section 108 of this title for a failure of the 

18 operator to comply with any health or safety standard, all 

19 miners who are idled due to such order shall be fully com- 

20 pensated after all interested parties are given an opportunity 

21 for a public hearing, which shall be expedited in such cases, 

22 and after such order is final by the operator for lost time at 

23 their regular rates of pay for such time as the miners are 
2 ^ idled by such closing, or for one week, whichever is the 



241 

54 

1 lesser. Whenever an operator violates or fails or refuses to 

2 comply with any order issued under section 104, section 

3 105, or section 108 of this Act, all miners employed at the 

4 affected mine who would have been withdrawn from, or 

5 prevented from entering, such time or area thereof as a 

6 result of such order shall be entitled to full compensation by 

7 the operator at their regular rates of pay, in addition to pay 

8 received for work performed after such order was issued, 

9 for the period beginning when such order was issued and 

10 ending when such order is complied with, vacated, or ter- 

11 initiated. The Commission shall have authority to order com- 

12 pensation due under this section upon the filing of a com- 

13 plaint by a miner or his representative and after opportunity 

14 for hearing subject to section 554 of title 5, United States 

15 Code. 

16 "administrative provisions 

17 "Sec. 113. (a) The Secretary is authorized and 

18 directed to administer the provisions of this Act through a 

19 Mine Safety and Health Administration established under 

20 section 402 of the Federal Mine Safety and Health Amend- 

21 ments Act of 1977. The Secretary, acting through the Assist- 

22 ant Secretary for Mine Safety and Health, shall have author- 

23 ity to appoint, subject to the civil service laws, such officers 

24 and employees as he may deem necessary for the administra- 

25 tion of this Act, and to prescribe powers, duties, and responsi- 



242 



55 

-. bilities of all officers and employees engaged in the adminis- 

2 tration of this Act. 

3 M (b) Except as provided in section 518 (a) of title 28, 

4 United States Code, relating to litigation before the Supreme 

5 Court, the Solicitor of Labor may appear for and represent 
q the Secretary in any civil litigation brought under this Act. 
rj "the pedbbal mine safety and health 

8 in; VIEW COMMISSION 

"Sec. 114. (a) The Federal Mine Safety and Health 

10 Review Commission is hereby established. The Commission 

H shall consist of live members, appointed by the President by 

12 and with the advice and consent of the Senate, from among 

13 persons who by reason of training, education, or experience 

14 are qualified to carry out the functions of the Commission 

15 under this Act. The President shall designate one of the 

16 members of the Commission to serve as Chairman. 

17 " (b) (1) The terms of the members of the Commission 

18 shall be six years, except that — 

1 9 " (A) members of the Commission, first taking office 

20 after the date of enactment of the Mine Safety and 
2i Health Amendments Act of 1977, shall serve, as desig- 

22 nated by the President at the time of appointment, one 

23 for a term of two years, two for a term of four years, 

24 and two for a term of six years; and 

25 " (B) a vacancy caused by the death, resignation, or 



243 



56 

1 removal of any member prior to the expiration of the 

2 term for which he was appointed shall be filled only for 

3 the remainder of such unexpired term. 

4 Any member of the Commission may be removed by the 

5 President for inefficiency, neglect of duy, or malfeasance in 

6 office. 

7 "(2) The Chairman shall be responsible on behalf of 

8 the Commission for the administrative operations of the 

9 Commission. The Commission shall appoint such employees 

10 as it deems necessary to assist in the performance of the 

11 Commission's functions and to fix their compensation in 

12 accordance with the provisions of chapter 51 and subchapter 

13 III of chapter 53 of title 5, United States Code, relating to 

14 classification and general pay rates. Upon the effective date 

15 of the Federal Mine Safety and Health Amendments Act of 

16 1977, the administrative law judges assigned to the Arling- 

17 ton, Virginia, Facility of the Office of Hearings and Appeals, 

18 United States Department of the Interior, shall be auto- 

19 matically transferred in grade and position to the Federal 

20 Mine Safety and Health Review Commission. Xotwithstand- 

21 ing the provisions of section 559 of title 5 of the United 

22 States Code, the incumbent Chief Administrative Law Judge 

23 of the Office of Hearings and Appeals of the Department of 

24 the Interior assigned to the Arlington, Virginia, facility 

25 shall have the option, on the effective date of the Federal 



244 



57 

1 Mine Safety and Health Amendments Act of 1 1)7 7, of trans- 

2 ferring to the Commission as an Administrative Law Judge, 

3 in the same grade and position as the other Administrative 

4 Law Judges. The Administrative Law Judges (except those 

5 presiding over Indian Probate Matters) assigned to the 
(> Western facilities of the Office of Searings and Appeals of 

7 the Department of the Interior shall remain with that De- 

8 partment at their present grade and position or they shall 

9 have the right to transfer on an equivalent basis to that ex- 
it) tended in this paragraph to the Arlington, Virginia Admin- 

11 istrative Law Judges in accordance with procedures estab- 

12 lished by the Civil Service Commission. The Commission 

13 shall appoint such additional administrative law judges as 

14 it deems necessary to carry out the functions of the Com- 
lo mission. Assignment, removal, and compensation of adminis- 

16 trative law judges shall be in accordance with sections 3105, 

17 3344, 5362, and 7521 of title 5, United States Code. 

18 " (c) The Commission is authorized to delegate to any 

19 group of three or more members any or all of the powers of 

20 the Board, except that two members shall constitute a quo- 

21 rum of any group designated pursuant to this paragraph. 

22 " (d) (1) An administrative law judge appointed by the 

23 Commission to hear matters under this Act shall hear, and 

24 make a determination upon, any proceeding instituted before 

25 the Commission and any motion in connection therewith, as- 



245 

58 

1 signed to such administrative law judge by the chief adminis- 

2 trative law judge of the Commission or by the Commission, 

3 and shall make a decision which constitutes his final disposi- 

4 tion of the proceedings. The decision of the administrative law 

5 judge of the Commission shall become the final decision of the 
q Commission thirty days after its issuance unless within such 
7 period the Commission has directed that such decision shall 
g be reviewed by the Commission in accordance with para 1 
9 graph (2) of this subsection. An administrative law judge 

10 shall not be assigned to prepare a recommended decision 

11 under this Act. 

12 " (2) The Commission shall prescribe rules of procedure 

13 for its review of the decisions of administrative law judges in 

14 cases under this Act and which shall meet the following 

15 standards for review (the provisions of section 557(b) of 

16 title 5, United States Code, with regard to the review au- 

17 thority of the Commission are hereby expressly superseded 

18 to the extent that they are inconsistent with the provisions 

19 of paragraphs (A), (B), and (C) of this subsection) : 

20 "(A) Petitions for discretionary review. — 

21 (i) Any party may file and serve a petition for dis- 

22 cretionary review by the Commission of a decision of 

23 an administrative law judge within thirty days after the 

24 issuance of such decision. Review by the Commission 



246 



59 

1 shall not be a matter of right but of die sound discretion 

2 of the Commission. 

3 " (ii) Petitions for diseretionary review shall be filed 

4 only upon one or more of the following grounds: 

5 ,k (I) A finding or eonclusion of material faet is 

6 qoI supported by substantial evidence. 

7 " (II) A necessary legal conclusion is erroneous. 

8 " (III) The decision is contrary to law or to the 

9 duly promulgated rules or decisions of the Com- 

10 mission. 

11 " (IV) A substantial question of law, policy, or 

12 discretion is involved. 

13 "(V) A prejudicial error of procedure was 
** committed. 

lo " (iii) Each issue shall be separately numbered and 

plainly and concisely stated, and shall be supported by 
detailed citations to the record when assignments of 
eiTor are based on the record, and by statutes, regula- 

19 tions, or principal authorities relied upon. Except for 



20 



good cause shown, no assignment of error by any party 



21 shall rely on any question of fact or law upon which 

99 

the administrative law judge had not been afforded an 
23 



24 



opportunity to pass. Review by the Commission shall 
be granted only by affirmative vote of two of the Com- 



247 



60 

1 missioners present and voting. If granted, review shall 

2 be limited to the questions raised by the petition. 

3 " (B) Eeview by commission at its own initi- 

4 ative. — At any time within thirty days after the issu- 

5 ance of a decision of an administrative law judge, the 

6 Commission may in its discretion (by affirmative vote of 

7 two of the Commissioners present and voting) order the 

8 case before it for review but only upon the ground that 

9 the decision may be contrary to law or Commission pol- 
io icy, or that a novel question of policy has been presented. 

11 The Commission shall state in such order the specific 

12 issue of law, Commission policy or novel question of 

13 policy involved. If a party's petition for discretionary 
1"* review has been granted, the Commission shall not raise 
15 or consider additional issues in such review proceedings 
1G except in compliance with this paragraph. 

17 "(C) Scope of review.— For the purpose of re- 

18 v i ew by the Commission under paragraph (A) or (B) 

19 of this subsection, the record shall include (i) all mat- 

20 ters constituting the record upon which the decision of 

21 the administrative law judge was based, (ii) the rul- 

22 ings upon proposed findings and conclusions, (iii) the 
2,r * decision of the administrative law judge, (iv) the peti- 
2 ^ tion or petitions for discretionary review, responses 
2 ^ thereto, and the Commission's order for review, aud 



248 



61 

1 (v) briefs filed on review. No other material shall be 

2 considered by the Commission upon review. The ad- 

3 ministrative law judge's findings and conclusions of fact, 

4 as distinguished from policy determinations, shall not 
B he set aside by the Commission unless such findings or 
(> conclusions of fact are unsupported by substantial cvi- 
1 dence of record. The Commission either may remand 

8 the case to the administrative law judge for further 

9 proceedings as it may direct or it may affirm, set aside, 
1U or modify the decision or order of the administrative law 
H judge in conformity with the record. If tin Commission 
12 determines that farther evidence is necessary on an 
1^ issue of fact it shall remand the case for further pro- 
l^ ceedings before the administrative law judge. 

15 " (e) In connection with hearings before the Connnis- 

- 1 " sion, or its administrative law judges, under this Act, the 

Commission and its administrative law judges may compel 

the attendance and testimony of witnesses and the production 

l^ of books, papers, or documents or objects, and to order tcsti- 

2 ^ mony to be taken by deposition at any stage of the proceedings 

21 before them. Any person may be compelled to appear and de- 

pose and produce like documentary or physical evidence, in 

the same manner as witnesses may be compelled to appear 

and produce evidence before the Commission and its adminis- 

^° trative law judges. Witnesses shall be paid the same fees and 



249 



62 

1 mileage that are paid witnesses in the courts of the United 

2 States and at depositions ordered by such courts. In case of a 

3 contumacy, failure, or refusal of any person to obey a sub- 

4 pena or order of the Commission or an administrative law 

5 judge, respectively, to appear, to testify, or to produce docu- 

6 mentary or physical evidence, any district court of the 

7 United States or the United States courts of any territory 

8 or possession, within the jurisdiction of which such person is 

9 found, or resides, or transacts business, shall, upon the appli- 

10 cation of the Commission, or the administrative law judge, 

11 respectively, have jurisdiction to issue to such person an or- 

12 der requiring such person to appear, to testify, or to produce 

13 evidence as ordered by the Commission or the administrative 

14 law judge, respectively, and any failure to obey such order 

15 of the court may be punished by said court as a contempt 

16 thereof. 

17 "authorization of appropriations 

18 "Sec. 115. There are authorized to be appropriated, 

19 out of any moneys in the Treasuiy not otherwise appro- 

20 priated, such sums as may be necessary to carry out the 

21 provisions of this title.". 

22 MANDATORY SAFETY TRAINING 

23 "Sec. 116. (a) Each operator shall have a safety 

24 training program which shall be approved by the Secretary. 

25 The Secretary shall promulgate regulations with respect to 



250 



63 

1 such safety training programs no more than one hundred 

2 and eighty days after the effective date of the Federal Mine 

3 Safety and Health Amendments Act of 1977. Each training 

4 program approved by the Secretary shall provide no less than 

5 that— 

6 "(1) new miners shnll receive no less than forty 

7 hours of training if they are to work underground. 

8 Such training shall include use of the self-rescue device 

9 and use of respiratory devices, hazard recognition, 

10 escapeways, walk around training, emergency proce- 

11 dures, basic ventilation, basic roof control, electrical 

12 hazards, first aid, and the health and safety aspects of 

13 the task to which he will be assigned ; 

14 " (2) new miners shall receive no less than twenty- 

15 four hours of training if they are to work on the sur- 
1G face. Such training shall include use of the self-rescuer 

17 device and use of respiratory devices, hazard recog- 

18 nition, emergency procedures, electrical hazards, first aid, 

19 walk around training and the health and safety aspects 

20 of the task to which he will be assigned ; 

2i "(3) all miners shall receive no less than eight 

22 hours of refresher training no less frequently than once 

23 each twelve months, except that miners already cm- 

24 ployed on the effective date of the Federal Mine Safety 

25 and Health Amendments Act of 1977 shall receive this 



251 



64 

1 refresher training no more than ninety days after the 

2 date of approval of the training plan required by this 

3 section ; 

4 "(4) a^' miner who is reassigned to a new task 

5 shall receive training in accordance with a training 
G plan approved by the Secretary under this subsection 

7 in the safety and health aspects specific to that task prior 

8 to performing that task. 

9 "(b) Any safety training provided under subsection 

10 (a) of this section shall be provided during normal work- 

11 ing hours. Miners shall be paid at their normal rate of 

12 compensation while they take such < raining, and new miners 

13 shall be paid at their starting wage rate when they lake 

14 the new miner training. If such training shall be given at 

15 a location other than the normal place of work, miners 

16 shall also be compensated for the additional costs they may 

17 incur in attending such training sessions. 

18 " (c) Upon completion of each training program, each 

19 operator shall certify, on a form approved by the Secretary, 

20 that the miner has received the specified training in each 

21 subject area of the approved safety training plan. A certifi- 

22 eate for each miner shall be maintained by the operator, and 

23 shall be available for inspection at the mine site, and a copy 

24 thereof shall be given to each miner at the completion of such 

25 training. When a miner leaves the operator's employ, he shall 

20-040 O - 78 - 17 



252 



65 

1 be entitled to a copy of his safety training certificates. False 

2 certification by an operator that training was given shall be 

3 punishable under section 1 1 1 (a) and (h) of this Act; and 

4 each safety training certificate shall indicate on its face, in 

5 bold letters, printed in a conspicuous manner the fact that 

6 such false certification is so punishable. 

7 "(d) Within one hundred and eighty days after the 

8 effective date of the Federal .Mine Safely and Health Amend- 

9 nients Act of 1977, the Secretary shall publish regulations 

10 which shall provide that mine rescue teams comprised of 

11 Federal mine inspectors shall be maintained at each district, 

12 subdistriet, and, where practicable, field office of the Mine 

13 Safety and Health Administration.". 

14 AMENDMENTS WITH RESPECT TO INTERIM MANDATORY 

15 HEALTH STANDARDS 

16 Sec. 202. (a) (1) Section 201 (a) of the Federal Coal 
n Mine Health and Safety Act of 1969 is amended by striking 

18 out "coal mines" and inserting in lieu thereof "mines, as 

19 applicable". 

20 (2) Section 201 (b) of such Act is amended by striking 

21 out "coal mine" and inserting in lieu thereof "mine". 

22 (b) Section 205 of such Act is amended by striking 

23 out "coal mining" and inserting in lieu thereof "mining". 

24 (c) Section 206 of such Act is amended by striking out 



253 



66 

1 "coal mine" each time it appears therein and inserting in 

2 lieu thereof "mine". 

3 (d)(1) Section 202(e) of the Federal Coal Mine 

4 Health and Safety Act of 1969 is amended to read as 

5 follows : 

G "(e) References to concentrations of respirable dust in 

7 this title means the average concentration of respirable dust 

3 measured with a device approved by the Secretary and the 

9 Secretary of Health, Education and Welfare.". 

10 (2) Section 318 of the Federal Coal Mine Health and 

11 Safety Act of 1969 is amended by striking subsection (k) 

12 thereof. 

13 AMENDMENTS WITH EESPECT TO INTEEIM MANDATOEY 

14 SAFETY STANDARDS FOE UNDEEGROUND COAL MINES 

15 Sec. 203. Title III of the Federal Coal Mine Health 

16 and Safety Act of 1969 is amended by striking section 301 

17 (c) and (d) thereof. 

18 TITLE III— MISCELLANEOUS PBOVISIONS 

19 TEANSFEE MATTERS 

20 Sec. 301. (a) Except with respect to the functions 

21 assigned to the Secretary of the Interior pursuant to section 

22 501 of the Federal Coal Mine Health and Safety Act of 

23 1969, the functions of the Secretary of the Interior under 

24 the Federal Coal Mine Health and Safety Act of 1969, as 

25 amended, and the Federal Metallic and Nonmetallic Mine 



254 



67 

1 Safety Act of 1966 are transferred to the Secretary of Labor, 

2 except those which are expressly transferred to the Connnis- 

3 sion by this Act. 

4 (b) (1) The mandatory standards relating to mines, 

5 issued by the Secretary of the Interior under the Federal 

6 Metallic and Nonmetallic Mine Safety Act of 1966 and 

7 standards and regulations under the Federal Coal Mine 

8 Health and Safety Act of 1969 which are in effect on the 

9 date of enactment of this Act shall remain in effect as 

10 standards applicable to metallic and nonmetallic mines and 

11 to coal mines respectively under the Federal Mine Safety and 

12 Health Act of 1977 until such time as the Secretary shall 

13 issue new or revised standards. 

14 (2) Within sixty days after the effective date of this 

15 Act, the Secretary shall establish an advisory committee 

16 under section 103 of the Federal Mine Safety and Health 

17 Act of 1977 which shall, within one hundred and eighty 

18 days after the date of the establishment of such advisory 

19 committee, review the advisory health and safety standards 

20 issued by the Secretary of the Interior under the Federal 

21 Metallic and Nonmetallic Mine Safety Act of 1966 and rec- 

22 ommend to the Secretary which of those standards (or any 

23 modification of such standards which does not substantially 

24 diminish the health and safety of miners) should be pro- 

25 mulgated as health and safety standards under this section. 



255 



68 

1 The Secretary shall publish, within sixty days after any 

2 recommendations of the advisory committee under this para- 

3 graph, each of the standards so recommended for adoption 

4 with or without modification as a health and safety standard 

5 under this section by publication of such standard in the 

6 Federal Kegister, and afford interested persons a period of 

7 twenty-five days after publication to submit written data or 

8 comment. Within thirty days after the close of the comment 

9 period specified in the preceding sentence, the Secretary shall 

10 promulgate by publication in the Federal Kegister a standard 

11 based upon the advisory committee recommended with or 

12 without modification, and the data and comments received 

13 thereon, unless the Secretary determines that such a standard 

14 will not promote the health and safety of miners and pub- 
is fishes an explanation of that determination in the Federal 

16 Kegister. 

17 (3) All interpretations, regulations, and instructions of 

18 the Secretary of the Interior or the Director of the Bureau 

19 of Mines, in effect on the date of enactment of this Act and 

20 not inconsistent with any provision of this Act or any 

21 amendment made by this Act, shall be published in the Fed- 

22 eral Register and shall continue in effect until modified or 

23 superseded in accordance with the provisions of this Act. 

24 (c) (1) All unexpended balances of appropriations, per- 

25 sonnel, property, records, obligations, and commitments 



250 



69 

1 which are used primarily with respect to any function trans- 

2 fcrred under the provisions of suhsection (a) of this section 

3 to the Secretary shall be transferred to the Department of 

4 Labor or the Commission, as appropriate. The transfer of 

5 personnel pursuant to this paragraph shall be without reduc- 

6 tiou in classification or compensation for one year after such 

7 transfer, except that the Secretary of Labor shall have full 

8 authority to assign personnel during such one-year period in 

9 order to efficiently carry out functions transferred to him 

10 under this Act. 

11 (2) All orders, decisions, determinations, rules, regula- 

12 tions, permits, contracts, certificates, licenses, and privileges 

13 (A) which have been issued, made, granted, or allowed 

14 to become effective in the exercise of functions which are 

15 transferred under this section by any department or agency, 

16 any functions of which are transferred by this section, and 

17 (B) which are in effect at the time this section takes effect, 

18 shall continue in effect according to their terms until modi- 

19 fied, terminated, superseded, set aside, or repealed by the 

20 Secretary of Labor, the Federal Mine Safety and Health 

21 lvcview Commission, by any court of competent jurisdiction, 

22 or by operation of law. 

23 (3) The provisions of this section shall not affect any 

24 proceedings pending at the time this section takes effect 

25 before any department or agency, functions of which are 



257 



70 

1 transferred by this section; except that such proceedings, to 

2 the extent that they relate to functions so transferred, shall 

3 be continued before the Secretary of Labor or the Federal 

4 Mine Safety and Health Review Commission. Orders shall 

5 be issued in such proceedings, appeals shall be taken there- 

6 from, and payments shall be made pursuant to such orders, 

7 as if this section had not been enacted; and orders issued in 

8 any such proceedings shall continue in effect until modified, 

9 terminated, superseded, or repealed by the Secretary of 

10 Labor, the Federal Mine Safety and Health Review Com- 

11 mission, by a court of competent jurisdiction, or by operation 

12 of law. 

13 (4) The provisions of this section shall not affect suits 

14 commenced prior to the date this section takes effect and in 

15 all such suits proceedings shall be had, appeals taken, and 

16 judgments rendered, in the same manner and effect as if 

17 this section had not been enacted; except that if before the 

18 date on which this section takes effect, any department or 

19 agency (or officer thereof in his official capacity) is a party 

20 to a suit involving functions transferred to the Secretary, 

21 then such suit shall be continued by the Secretary of Labor. 

22 Xo cause of action, and no suit, action, or other proceeding, 

23 by or against any department or agency (or officer thereof 
2^ in his official capacity) functions of which are transferred 
25 bv this section, shall abate by reason of the enactment of this 



258 



71 

1 section. Causes of actions, suits, actions, or other proceedings 

2 may be asserted by or against the United States or the Secre- 

3 tary as may be appropriate and, in any litigation pending 

4 when this section takes effect, the court may at any time, on 

5 its own motion or that of any party, enter an order which 

6 will give effect to the provisions of this paragraph. 

7 (d) For purposes of this section, (1) the term "func- 

8 tion" includes power and duty, and (2) the transfer of a 

9 function, under any provision of law, of an agency or the 

10 head of a department shall also be a transfer of all functions 

11 under such law which are exercised by any officer or offi- 

12 cer of such agency or department. 

13 MINI; SAFETY AMi HEALTH ADMINISTRATION 

11 Sec. 302. (a) There is established in the Department 

15 of Labor, a Mine Safety and Health Administration to 

16 be headed by an Assistant Secretary of Labor for Mine 

17 Safety and Health appointed by the President, by and with 

18 the advice and consent of the Senate. The Secretary is au- 

19 thorized and directed, except as specifically provided other- 

20 wise, to carry out his functions under the Federal Mine Safety 

21 and Health Amendments Act of 1977 through the Mine 

22 Safety and Health Administration. 

23 (b) Section 5315 of title 5, United States Code, is 

24 amended by adding at the end thereof the following 

25 paragraph : 



259 



72 

1 "(109) Assistant Secretary of Labor for Mine 

2 Safety and Health.". 

3 (c) (1) Section 5145 of title 5, United States Code, is 

4 amended by adding at the end thereof the following new 

5 paragraph : 

6 " (64) Chairman, Federal Mine Safety and Health 

7 Review Commission.". 

8 (2) Section 5315 of title 5, United States Code, is 

9 amended by adding at the end thereof the following new 

10 paragraph : 

11 " (109) Members, Federal Mine Safety and Health 

12 Keview Commission.". 

13 (d) The principal office of the Commission shall be in 

14 the District of Columbia. Whenever the Commission deems 

15 that the convenience of the public or of the parties may be 

16 promoted, or delay or expense may be minimized, it may 

17 hold hearings or conduct other proceedings at any other 

18 place. 

19 AMENDMENTS W1TII RESPECT TO MINE SAFETY AND 

20 HEALTH ADMINISTRATION 

21 Sec. 303. (a) (1) Section 501 (a) of the Federal Coal 

22 Mine Health and Safety Act of 1969 is amended by striking 

23 out the word "coal" wherever it appears therein, and by 

24 striking out "The Secretary and" and inserting in lieu thereof 

25 "The Secretary of the Interior and". 



260 



73 

1 (2) Section 501 (a) of the Federal Coal Mine Health 

2 and Safety Act of 1969 is further amended by inserting 

3 immediately after paragraph "(10)" thereof, the following 

4 new paragraph: 

5 "(11) to, upon the written request by any operator 
G or authorized representative of miners, specifying with 

7 reasonable particularity the grounds upon which such 

8 request is made determine whether any substance nor- 

9 mally found in a mine has potentially toxic effects in the 
10 concentrations normally found in the mine or whether 
H any physical agents or equipment found or used in a 

12 mine has potentially hazardous effects, and shall submit 

13 such determinations to both the operators and miners 

14 as soon as possible;" and 

13 by renumbering the current paragraph " (11) " as " (12) ". 

1 G (o) Section 501 (b) of such Act is amended by striking 

17 out the word "coal" each time it appears therein and by 

18 adding after the word "Welfare" the following: "through the 
jej National Institute for Occupational Safety and Health estab- 
20 lished under the Occupational Safety and Health Act of 
2\ 1970"; and by striking out the period at the end thereof 
oo and inserting "of the Interior in coordination with the 

23 Secretary". 

24 (4) Section 501 (d) of such Act is amended by striking 

25 out the word "coal". 



261 



74 

1 (5) Section 501 of such Act is further amended by add- 

2 ing at the end thereof the following new subsection : 

3 " (h) The Secretary shall compile accurate statistics on 

4 work injuries and illnesses occurring in the manes subject to 

5 this Act". 

6 (b) Section 502 of such Act is amended by striking 

7 out the word "coal" each time it appears therein. 

8 (c) (1) Section 503 {a) of such Act is amended by 

9 striking out the word "coal" each time it appears therein. 
10 (2) Section 503 (b) of such Act is amended by striking 
13 out the word "coal" each time it appears therein. 

12 (d) (1) Section 503(f) of such Act is amended by 

13 striking out the word "coal". 

14 (2) Section 503 (g) of such Act is anaemded by striking 

15 out the word "coal". 

16 (e)(1) Section 505 of such Act is amended by striking 

17 out "the mining of coal" and inserting in lieu thereof "in 

18 mining". 

19 (2) Section 505 of such Act is further amended by 

20 changing the period at the end of the second sentence thereof 

21 to a colon, and adding the following language: "Provided 

22 however, That, to the maximum extent feasible, in the selec- 

23 tion of persons for appointment as mine inspectors, no person 

24 shall be so selected unless he has the basic qualification of at 

25 least five years practical mining experience and in assigning 



262 



75 

1 mine inspectors to the inspection and investigation of individ- 

2 ual mines, due consideration shall be given to the extent pos- 

3 sible to their previous experience in the particular type of 

4 mining operation where such inspections are to be made." 

5 (f) Section 506 (b) of such Act is amended by striking 
G out the word ''coal" each time it appears therein. 

7 (g) (1) Section 511(a) of such Act is amended by 

8 striking oat the word "coal". 

9 (2) Sec! ion 511 (b) of such Act is amended by striking 

10 out the word "coal". 

11 v h) Section 502 of such Act is amended by adding the 

12 following new subsection (c) : 

13 " (c) (1) The National Mine Health and Safety Acad- 

14 eniv shah 1 be maintained as an agency of the Department 

15 of the Interior. The Academy shall be responsible for the 
K> training of mine safety and health inspectors under section 

17 505 of this Act, and in training of technical support per- 

18 sonnel of the Mine Safety and Health Administration estab- 

19 lished under section 302 of the Federal Mine Safety and 

20 Health Amendments Act of 1977; and for any other train- 

21 ing programs for mine inspectors, mining personnel, or other 

22 persons as the Secretaries of Labor and Interior shall desig- 

23 nate. In performing this function, the Academy shall have 

24 the authority to enter into cooperative educational and train- 

25 ing agreements with educational institutions, State govern- 



263 



76 

1 ments, labor organizations, and mine operators and related 

2 industries. Such training shall be conducted by the Academy 

3 in accordance with curriculum needs and assignment of 

4 instructional personnel established by the user. 

5 "(2) In performing its function pursuant to this sec- 
G tion, the National Mine Health and Safety Academy shall 

7 use the facilities and personnel of the Department of the In- 

8 terior, and such other personnel as shall be mutually agreed 

9 upon by the Secretaries of Labor and Interior. The Secretary 

10 of the Interior, upon request by the Academy, shall appoint 

11 or assign to the Academy such officers and employees as the 

12 Director of the Academy deems necessary for the perform- 

13 ance of the duties and functions of the Academy. 

14 "(3) The Secretary of the Interior shall conduct his 

15 safety research responsibilities under section 501 of this Act 

16 in coordination with the Secretary of Labor, and the Secre- 

17 taries of Labor and the Interior are authorized to enter into 

18 contractual or other agreements for the performance of such 

19 safety related research.". 

20 (i) Section 7 (b) (5) of the Small Business Act is 

21 amended by striking out the word "coal". 

22 SAVINGS PEOVISION 

23 Sec. 304. Nothing contained in this Act or any amend- 

24 ment made by this Act shall be construed to reduce the 

25 number of inspectors engaged in enforcement of the Fed- 



264 



77 

1 cral Coal Mine Health and Safety Act of 1969 and Fed- 

2 era] Metallic and Xoninctallic Mine Safety Act of 1966 as in 

3 effect prior to the effective date of this Act or to reduce 

4 the numher of inspectors engaged in the enforcement of 
6 the Occupational Safety and Health Act of 1970. 

6 BUDGBT PROVISION 

7 Sec. 305. In the preparation of the Budget message 

8 required under section 201 of the Budget and Accounting 

9 Act, 1921 (31 U.S.C. 11), the President shall set forth 

10 as separate appropriation accounts amounts required for 

11 appropriation for mine health and safety pursuant to the 
112 Federal Mine Health and Safety Act of 1977 and for occu- 

13 pational safety and health pursuant to the Occupational 

14 Safety and Health Act of 1970. 

15 REPEALER 

16 Sec. 306. The Federal Metal and Nonmetallic Mine 

17 Safety Act of 1966 is repealed. 

18 EFFECTIVE DATE 

19 Sec. 307. This Act and the amendments made by this 

20 Act shall take effect on the first day of July 1978 except 

21 that the Secretary of Labor is authorized to establish 

22 such rules and regulations as may be necessary for the effi- 

23 cient transfer of functions provided under this Act. 






265 

[From the Congressional Record — Daily Digest, Apr. 20, 1977] 

(P. 527) 
******* 

Mine Safety 

Committee on Human Resources. — Labor Subcommittee approved 
for full committee consideration with amendments S. 717, to promote 
safety and health in the mining industry. Full committee is expected to 
consider this measure on Tuesday, May 3. 

******* 

[From the Congressional Record — Daily Digest, May 3, 1977] 

(P. 621) 

Committee on Human Resources. — Committee ordered favorably re- 
ported the following bills : 

S. 717, to promote safety and health in the mining industry 
(amended). 

******* 

[From the Congressional Record — House, May 13, 1977] 

(Pp. 4447-4448) 



Reports of Committees on Public Bills and Resolutions 

Under clause 2 of rule XIII, reports of committees were delivered to 
the Clerk for printing and reference to the proper calendar, as follows : 
******* 

Mr. Perkins : Committee on Education and Labor. H.R. 4287. A bill to promote 
safety and health in the mining industry, to prevent recurring disasters in the 
mining industry, and for other purposes; with amendment (Rept. No. 95-312). 
Referred to the Committee of the Whole House on the State of the Union. 

******* 

[A copy of H.R. 4287 as reported, with accompanying House Report 
95-312 follows:] 



266 



95th CONGRESS 

1st Session 



Union Calendar No. 156 

H. R. 4287 

[Report No. 95-312] 



IN THE HOUSE OF REPRESENTATIVES 

March 2, 1977 

Mr. Gaydos (for himself and Mr. Df.nt) introduced the following bill; which 
was referred to the Committee on Education and Labor 

May IS, 1077 

Reported with an amendment, committed to the Committee of the Whole House 
on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and Insert the part printed In Italic] 



A BILL 

To promote safety and health in the mining industry, to prevent 
recurring disasters in the mining industry, and for other 
purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 That this Aot may bo cited aa tho "Federal Mino S afety and 

4 Health Amcndmcnto Aot of 1077". 



267 



1 TITLE I AMENDMENTS TO THE GENERAL 

2 PROVISIONS OF THE FEDERAL COAL MINE 

3 HEALTH AND SAFETY ACT OF 1909 

4 SHOUT TITLE 

5 Sec. 101. The firot ocetion of the Federal Coal Mine 

6 Health and Safety Act of 19G9 ig amended to read on fol 

7 lows : "That this Act may be cited ag the 'Federal Mine 

8 Safety and Health Act of 1977* ". 

9 DEFINITIONS AND APPLICABILITY 

10 Sec. 103. (a) (1) Section 2 of the Federal Coal Mine 

11 Health and Safety Act of 1969 h amended by striking out 

12 "coal" wherever it appears. (2) Section 2(g) (1) of such 

13 Act ia amended by striking out "the Interior" and inserting 

14 in lieu thereof "Labor". 

15 (b) (1) Section 8 (a) of ouch Act is amended by otrik - 

16 ing out "tho Interior" and inserting in li e u thereof "Labor". 

17 (2) Section 3(d) of such Act ic amended by deleting 

18 the oem'roolon at tho end thereof, - and inserting in lieu thereof 

19 "or any independent contractor performing services or oon - 

20 ntruotion at such mine;" 

21 (3) Section 3(h) of such Act is am e nded to road as 

22 follows i 

23 "(h) .'Mino' means (1) an area of land from which 
21 . minerals aro extracted in nonliquid form or, if in liquid 
25 form) are extracted with workers underground, (2) private 



20-040 O - 78 - 18 



268 



3 

1 ways and roadu appurtenant to ouch area, and (3) land s , 

2 excavations, underground pawogowayr » , shaft ;; , olopeo, tun 

3 nolo, and workings Ptructurer . , facilities, equipment, maohinoo, 

4 toolo, or other property including impoundm e nts, rotontion 

5 dams, and tailing ;) pondn, on the nurfneo or underground, used 

6 in, or to lie u ? ed in. or resulting from, the work of oxtraeting 

7 Guoh minerals from their natural deposits in nonliquid form, 

8 or if in liquid form, with workers underground, or used in the 

9 milling of such minerals, or the work of preparing eoal, and 

10 includes custom eonl preparation facilities exeopt that with 

11 respect to protection against radiation hazard ;, r . uoh term shall 

12 not include property ur . ed in the milling of source minerals 

13 defined in the Atomio Energy Act of 1951, qo amended. In 

14 making a determination of what constitutes mineral milling 

15 for purposes of this Act the S e cretary shall give duo consider - 

16 ation to tho oonvonionoo of administration r e sulting from the 

17 dologation to one Assistant Secretory of all authority wi th 

18 regpect to the health and oafoty of minors employ od at one 

19 physical establishment." 

20 (1) Sections 3 (d)> (o), (g) > and (j) of saeh Act are 

21 oaoh amended by striking out th e word "co a l" wherev e r it 

22 appears. 

23 (5) Section 3 of such Act is amondod by striking out the 

\ 

24 word (< and" at tho end of par a graph (1) , by striking out tlie 

25 poriod at th e end of paragraph (m) and in s erting in li e u 



269 



4 

1 thereof ft semicolon, and by adding at tho end thoroof tho 

2 following new paragraphs : 

3 " (n) — 'Administration' means the Mine Safety and 

4 Health Administration in tho Department of Labor; and 

5 " (o) 'Commission* mcano tho Federal Mino Safety and 

6 Health Review Commission. " 

7 (c) Section 4 of such Act io amended by striking out 

8 tho word "coal". 

9 (d) (1) Section o (o) of such Aot is amended by otrik 
10 ing out Labor" and inserting in liou thoroof "tho Interior". 
H (3) Section 5(f) of ouch xVot is amended by striking 

12 out tho word "ooal" whorovor it appears, and by striking 

13 out "section 106" and substituting "section 107". 

14 TITLE II MINE SAFETY AND HEALTH 

1 5 STANDARD AMENDMENTS 

i6 AMENDMENT TO TITLE 1 

17 Sec. 201. Title I of the Federal Coal Mino Health and 

18 S afety Aot of I960 io amended to read as follows: 

19 "duties 



20 "Seo. 101. (ft) Each mino operator (1) shall furnish 

21 to each minor employm e nt and a placo of employment which 
are freo from r e cognized hazards that aro causing or aro 
likely to cause doath or harm to ouch minor; and (2) shall 
comply with the s afet}r and health s tandards and all rules, 
regulations, and orders promulgated under this Aot; and 



270 



1 "(b) En oh miner oul'jcct to the provisions of thin A t i t 

2 shall comply with the palely and health standards and all 

3 ruleo, rogulationr . , and orders promulgated under this Aot 

4 which are npplieahle to his own actions and conduct. 

5 "OAI ' ETY AND HEALTH STANDARDS 

G Sec. 102. (a) The Secretary may by rule promulgate, 

7 modify, or revoke any safety and health standards for the 

s health and safety of miner ?' , including standards for mine 

9 roseue and fircfighting operations, and for tho prevention 

10 of aooidents, injuries, or honlth hazards in mines which are 

11 subject to this Act in accordance with section 553 of titlo 5> 

12 United States Code (without regard to any roforoneo in suoh 

13 oootion to sections 5o6 and 557 of suoh title) } and tho fol - 

14 lowing provisions : 

15 " ( 1 ) Whenever tho Secretary, upon the basis of infor 
1G mation submitted to him in writing by an interested porson , 

17 a roproscntativo of any organization of employers or em 

18 ployoco, a nationally recognized standards producing organi 

19 zation, tho Secretary of Health, Education, and Wolfaro, the 

20 National Institute for Occupational Safety and Hoalth, or a 

21 Stato or political subdivision, or on tho basis of information 

22 dovclopod by tho Soorotary or othorwiso availablo to him, 

23 dotormines that a rulo should bo promulgated in order to 

24 eorvo tho objectives of this Act, tho S e crotary may roquost 

25 tho r e commondat 'fa ns of an advisory committee a ppoint e d 



271 



6 

1 undor section 103 of this Act. Th e S e cr e tary shall provid e 

2 such an advisory oommittoo with any proposals of hio own 

3 or of the Secretary of Health, Education, and Wolfaro, to - 

4 gothor with all portinont faotual information developed by 

5 the Secretary or the Secretary of H e alth, Education, and 

6 Welfare, or otherwise available, including the results of re - 

7 search, demonstrations, and experiments. An advisory com 
3 mitteo shall siibmit to tho Soorotary its recommendations 
regarding the rule to be promulgated within ninety days from 

10 tho dato of its appointment or within such longer or shorter 

11 period as may bo prescribed by the Secretary, but in no event 

12 for a period whioh is longor than one hundred and eighty 
V& days. When tho Secretary reooivos a recommendation from 

14 the National Institute for Occupational Safety and Health 

15 that a rule bo promulgated, modified, or rovokod, the Socro - 

16 raiy must, within sixty days after receipt thereof, refer such 

17 recommendation to an advisory committoo pursuant to this 
i8 paragrapn, or publish such as a propos e d rufo pursuant to 
1*9 paragraph (2) of this subsection, or publish in the Federal 
20 Eogistor his determination not . to do so, and his roasono 
"21 thorofort 

22 "(2) Tho Secretary shall publish a proposed rule pro 

23 ttiulgating, nwdirykg, or rovoking a safety and hoalth stand 

24 &rd in ' the Fedoral Register. If tho Secretary determines that 

25 a rod e sfaoidd bo propos e d and in connection therowith has 



272 



7 

j appointed an advisory committ e e as provided by paragraph 

2 ( 1 ) of this subsection, the Soorotary shall publish a propocod 

3 rulo or tho reasons for his dotermi nation not to publish suoh 

4 rulo, within sixty days following tho submission of tho advi 

5 sory committe e V . r e commendation, or tho expiration of tho 
(j period of timo prosoribod by tho .Soorotary in suoh submissiom 

7 In either ev e nt, tho Secretary Khali afford interested persons 

8 a period of thirty day ?' after ony suoh publication to submit 

9 written data or comments on tho proposod rulo. 

10 " (3) On or beforo tho last day of tho period provided 

11 for tho submission of written data or continents under para 

12 graph (2) , any inter e sted p e rson may file with tho Soorotary 
lo written objoctions to th e propos e d rulo, stating tho grounds 

14 thorofor and requesting a public hearing on such objootiono. 

15 Within thirty days aftor tho last day for fUing ouoh objcc 

16 tiono, tho Soorotary shall publish in tho Federal Rogistor a 

17 notioo specifying th e safety or health standard to which 
IS objoctions have been filed and a hearing requ es ted, and 

19 cpochying a time and place for s uch hoaring. An}r hearing 

20 undor this subsection s hall b e held promptly, Hearings re 

21 quired by this sub s ection s hall be informal and shall bo 

22 conducted by the Secretary, who ma}r prescribe suoh rules 

23 and make such ruling s concerning procedure s in such hoar - , 

24 ingo to avoid unnece s sary cost s or delay . A verbatim tran * 



273 

8 

1 ooript shall bo taken of any ouch informal hearing and ohall 

2 be available to the public. 

3 " (4) — Within sixty days aftor tho expiration of the 

4 period provided for the submission of written data or com 

5 inonto under paragraph (2), or within sixty days after the 

6 completion of any hearing hold undor paragraph (3), tho 

7 Soorotary shall issuo a rule promulgating, modifying, or ro ■ 

8 voking a safety or health hazard or make a determination 

9 that a rule should not bo issued. Such a rulo may contain a 

10 provision delaying its effective date for such period (not in 

11 oxooos of ninety days) as tho Secretary determines may bo 

12 neces s ary to insur e that affootod opomtors and minors will bo 

13 informod of tho oxistonoo of tho standard and of its terms and 
l^ that operators affected arc given an opportunity to familiarise 
15 thomsolvos and their omployoos with tho oxistonco of tho 
1( j requirements of tho standard * 

17 " (5) (A) — The Secretary, in promulgating standards 

18 dealing with toxic materials or harmful physical ngonts under 

19 this subsootion, shall sot standards which moot adequately 

20 aseuro on tho basis of tho best availablo ovidonco that no minor 

21 will suffer any material impairment of health or functional 

22 capacity even if such miner has regular exposure to tho 

23 hazards dealt with by such standard for tho period of hia 

24 working life. Development of standards undor this subsootion 

25 s hall bo based upon res e arch, d e monstrations, experiment^ 



274 



9 

1 and such othor information ac may bo Appropriate. In 

2 addition to the attainment of the highost dogroo of hoalth Qnd 

3 oafcty protection for tbo omployoo, othor oonoidorotiono ohal] 

4 bo tbo latoot availablo ooiontifio data in tbo fiold, tho feasibility 

5 of tho otmndardo, and experience gained undor thin and othor 

6 hoalth and oafoty lawr , > Whonovor praotiaablo, - tbo standard 

7 promulgated shall bo oxpreesod in tormc of objootivo oritoria 

8 and of tho performanc e doeir e d, 

9 (B) The Secretary of Hoalth, Education, and Wolfaro 

10 ao ooon as possiblo after tho dato of onaotmont of tho Fodoral 

11 Mino Safety and Hoalth Amendments Aot of 1977 but in 

12 no e v e nt lat e r than thr ee y e ar s aft e r s uch dato and on a 

13 continuing banio thereafter, shall, for caoh toxio material 

14 or harmful physical agent which is used or found in a 

15 mine, determine whether such material or agent ie poton - 

16 tially toxie at the concentration in which it ir> used or 

17 found in a mine, and rhall immediately submit puch dotor 

18 mination — to tho Secretary, — together — w+tk — all — portinont 

19 oritoria. Within sixty days after receiving any determination 

20 together with oritoria in accordance with tho preceding 

21 contonoo relating to a toxio material or harmful physical 

22 agont which is not covered by a hoalth or safety otandard 

23 promulgated und e r this section, tho Soerotary shall either 

24 appoint an adviaory committee to mako rcoommcnclationg 

25 with ronnoot to n health and safety standard oovoring such 



275 



10 

1 material or agont in etoeordanoo with paragraph ( 1 ) of thio 

2 ouboootion or publioh a propoood mlo promulgating mioh 

3 a hoalth and safety standard in aooordanco with paragraph 

4 -f&) — of thio subsootion or shall publish his dotormination 

5 not to do so. 

6 '"(6) Any standard promulgated undor this subsoction 

7 shall proooribo tho uso of labels or othor appropriate forms 
°. of warning as aro neoossar)^ to insure that employees are ap - 
9 prised of all hazards to which they arc exposed, relevant 

10 symptoms and appropriate cmorgcnoy treatment, and proper 

11 conditions and precautions of safo uso of exposure. Where 

12 appropriate, such standard sball also prosoribo suitable pro 

13 tootivo equipment and control or technological procedures 

14 to be used in connection with ouoh hazards and shall pro 

15 vido for monitoring or measuring omployoo oxposuro at such 

16 locations and intervals, and in such manner 30 as to a^urc 

17 the maximum protection of minors. In addition, whore 

18 appropriate, any such standard shall proscribe tho typo and 

19 froquonoy of medical examinations or othor tests which shall 

20 be made available, by the operator or at his cost, to miners 

21 exposed to suoh hazards in ordor to most effectively deter 

22 mine whether the hoalth of guch employees is adversely 

23 affected by such oxpo s ure. Where a ppropriate, tho standard 

24 oliall provide that whoro a determin a tion is made that a 

25 miner may suffer material impairment o f health or functional 



276 



11 

1 capacity by roason of oxposuro to tho haanrd eovorod by the 

2 otandard, that minor ohall bo romovod from ouoh oxposuro 
?, and reassigned. Any minor transferred aa a rooult of such 

4 oxposuro shall continue to roooivo compensation for such 

5 work at not loss than thu regular rato of pay for minora 
(j jn tho classification ouoh miner bold iminodiatoly prior to 
7 his transfor. In tho ovont cuoh medical examinations are in 
S tho nature of research, an determined by the Secretary of 
9 Health, Education, and Welfare, r . uoh examinations may be 

10 furnished at the expense of the Secretary of Health, Eduoa 

11 tiom and Welfare. The results of such examinations or tests 

12 ohall bo furnished only to the Secretary or the Secretary 

1 3 of Health, Education, and Welfare, and, at tho request of tho 
11 minor t to his designated physio' i am 

15 " (7) In promulgating or revoking standards a - ' author 

16 iKcd in this title, or in publishing any rule as authorized in 

17 this title, tho Secretary shall not reduce the protection af 

18 forded miners bolow that provided by any safety or health 

19 standard previously in offoot . 

20 "(b) (1) The Secretary shall provide, without regard 
2i to the requirements of chapter o, title o, United States Code, 

22 for an cmergonov temporary standard to take immediate 

23 offcot upon publication in tho Federal Register if he deter 

24 mines (A) that minors arc oxposod to gravo danger 'from 

25 oxposuro to substanoos or agonts dotorminod to bo toxic or 



277 



12 

1 physically harmful^ and (B) that such omorgonoy standard 

2 is nocossary to protoet minors from suoh dangor. 

3 "(2) Suoh otandard shall ho offootivo until superseded 

4 by a standard promulgated in aooordanoo with tho prooo- 

5 duros prooorihod in paragraph (3) of this subsection. 

6 "(3) Upon publication of ouch standard in the Federal 

7 Register, the Secretary shall commence a proceeding in ao - 

8 oordanoc with section 102 (a) of this Act, and tho standard 

9 as published shall al30 3crvc a3 a proposed rule for the pro - 

10 oooding. Tho Secretary shall promulgate a standard under 

11 this paragraph no later than nine months after publication of 

12 the omorgonoy standard as provided in paragraph (2) of 

13 this subsection. 

14 " (o) — Tho Secretary in authorised to grant a variance 

15 from any standnrd or portion thereof whenever he deter 

16 minos, or tho Secretary of Healthy Education, and Wolfarc 

17 oortifios, that suoh variance is nocossary to pormit an opor 

18 ator to participate in r e s e arch approved by him or tho Soo 

19 rotary of Health, Education, and Welfare designed to demon 

20 strat e or validate new and improved techniques to safoguard 

21 tho health or safety of worker s . No such variance shall bo 

22 granted until tho Secr e tary shall find that tho granting of 

23 mioh varianco will not adv e rsory affect tho health or safety 

24 of tho minors, and tho Secretary notifies tho miners affected 

25 directly and by publication in the Federal Register. 



278 



13 

1 ^-( d) (1) Any operator may apply to the Secretary for 

2 ft temporary order permitting limited noncompliance with 

3 a standard or any provision thereof promulgated under this 

4 cootion. Such temporary order shall be granted only if the 

5 operator files an application which meets the requirements of 

6 paragraph (3) and establishes that (A) ho is unable to 

7 comply with a standard by its effective da to because of 

8 unavailability of professional or technical personnel or of 

9 materials and equipment needed to come into compliance 

10 with the standard or because necessary construction or altera 

11 tion of faciliti e s cannot bo completed by the effective date, 

12 (B) ho will guarantee that employees are afforded no loss 

13 than the gam e m e asure of prot e ction th e y would havo been 

14 provided by such standard, and (C) ho has an effective 

15 program for coming into compliance with the standard m 

16 quickly as practicable . Any temporary order issued undor this 

17 oubsootion shall proBoribo the practices, m e ans, methods, 

18 operations, and processes which the op e rator must adopt and 

19 uso while tho order is in effect and stato in detail his pro - 

20 gram for coming into compliance with tho standard. Such a 

21 temporary ordor may be granted only after notic e to e m- 

22 ployeos and an opportunity for a publio h e aring: Provided, 

23 That tho Soorotary may issue one interim ordor to be cf 

24 footivo until a decision is made on the basis of th e h e aring, 

25 or for sixty days, whichev e r is l e s s , and th e l e ngth of tim e 






279 



14 

1 for which any such interim ordor may bo in effect cball be 

2 deducted from the poriod for whioh a temporary order, if 

3 granted, shall bo effective. No temporary ordor may bo in 

4 effect for longer than the poriod needed by th e employer to 

5 achieve compliance with the standard or six months, whioh 

6 e v e r ig short e r, e xc e pt that such an ordor may b e r e newed 

7 not more than twice (i) so long as tho requirements of tbia 
S gubgection are m e t, and (ii) if an application for renewal 
9 is filed at least ninety days prior to tho e xpiration date of the 

10 ordor. Xo intorim renewal of an ord e r may remain in e ffoot 

11 for longer than one hundred and eighty days. 

12 "(2) An application for a temporary ord e r und e r this 

13 subs e ction ghall contain — 

14 " (A) a specification of tho standard and/or portion 

15 thereof from which the employer seeks a noncompliance 

16 order. 

17 " (B) a representation by tho operator, supported by 

18 representations from qualified persons having firsthand 

19 knowledge of the facts represented^ that he is unnblo to 

20 comply with tho standard or portion thereof and a do 

21 tailed statement of the reasons therefor, 

22 "(C) a statement of tho steps ho has taken and will 
-3 take (with specific dates) to protect minors against tho 

24 hazards covered by tho standard. 

25 "(D) a statement of when he expects to be able to 



280 



15 

1 comply with tho otandard and what otopo ho hao takon 

2 and what otopo ho will take (with dates specified) to 

3 oomo into compliance with tho standard, and 

4 "(E) a certification that ho hao informod hio om 

5 ploycoo of tho application by giving a oopy thoroof to 

6 thoir authorizod roprosontativo, posting a statemont giv 

7 ing a summary of tho application and specifying whor e a 

8 oopy may bo examined at tho plaoo or plaooo whoro no 

9 tiooo to omployooo aro normally pootod, and by othor 

10 appropriate moans . 

11 A doooription of how omployooo have boon informod shall 

12 bo oontainod in tho certification Tho information to om 

13 ployooe shall also inform thorn of thoir right to petition tho 

14 Secretary for a hoaring . 

15 " (o) Any affcotcd operator may apply to tho Soorotary 

16 for an order for a varianoo from a otandard promulgated 

17 under thio ocotion. Affcoted minora and thoir roproocntativo 

18 shall bo given notioo of each such application and an oppor - 

19 tunity to partioipato in a hoaring. Tho Soorotary ohall ioouo 

20 an order if ho determines on the record, after opportunity for 

21 a n insp e ction whoro appropriato and a public hoaring, that 

22 tho proponent of tho variance has demonstrated by a pro 

23 pondoranco of tho ovidenco that tho conditions, praotiooo, 

24 moans, m e thods, operations, or processes uood or propoood 

25 to bo us e d by an operator will provido employment and 



281 



16 

1 places of employment to hio employees which arc as safe 

2 and healthful as those which would prevail if ho complied 

3 with the standard. The order so issued ohall proooribo tho 

4 -coa litions tho operator must maintain, and the practices, 

5 means, methods, operations, and processes which ho must 

6 adopt and utilize to the extent they differ from tho standard 

7 in question. Such order may bo modified or revoked upon 

8 application by an operator, minor, roprosontativo of minoro 

9 or by tho Secretary, in tho manner proscribed for its issuanoo 

10 under this subcootiom 

11 "(f) The provisions of subsections (d) and (o) shall not 

12 apply with r es p e ct to any s tandard e nacted by titlo II of this 

13 Act and in effect on tho date immediately prior to tho offoo 

14 tivo date of tho Federal Mine Safety and H e alth Amend 

15 monts Act of 1976 or to any standard promulgated pursuant 

16 to that titlo prior to such date. 

17 " (g) Any person who may be adversely affected by a 

18 standard issued under this section may, at any timo prior to 

19 th e sixtieth day after such standard is promulgated, filo a 

20 petition ohallonging tho validity of such standard with tho 

21 United States court of appeals for tho District of Columbia 

22 circuit or tho circuit wherein such porson rosidoc or has hin 

23 principal plaoo of business, for a judicial roviow of such 

24 standard. A copy of tho petition ohall be forthwith trans 

25 mitted by the clerk of th e court to tho Soorotary, Tho filing 



282 

17 

1 of tmoh potition gIiqII not, unlooo otherwise ordered by the 

2 court, operate qu a I ' tay of the otandard. No objection tbnt 

3 lino not been urged before tbe Secretory uhall be considered 

4 by tbe court, unlo -iii tbe failure or neglect to urge i nch 

5 objection i ball be o.\ou"cd because of extrnordinnry circniu 
g ». tanoc > . Tbe procedure *, of thi >. noction nhall be tbe evolutive 
7 moans of challenging the validity of a standard ■ 

g "ADVISORY committee *. 

g "Sec. 10 3 . (a) Tbe Secretary may appoint advisory 

10 oomniittcor . to n^ . bit him in bin standard potting funotionr . 

H under noot i on 103 (a) — of 'thin Act, and to advir . o him on 

12 other mat ten; relating to safety and health in mines . Kaoh 

13 unoh advi s ory committe e may includo as a member ono 

14 or more domgnooc of tbo Secretary of Healthy Education, 

15 and Welfares tbe National Bureau of Standards , Department 
15 of Commeroe, and tbo National Sci e nce Foundation, and 
17 chall includo among its mombors p e rsons qualified by oxpori 
lg onco and affiliation to pre s ent th e viewpoint of operators of 

19 such mines and an e qual number of persons similarly q - uali 

20 fied to procent th e vi e wpoint of workers in nuoh minor', ar t 
2i well af . ono or mor e r e pr e s e ntatives of mine inspection or 

22 safety agenci e s of th e States . An advisory committoo may 

23 alr . o include such other p e rsons as the Secretary may appoint 

24 who are qualified by knowledge and exporionoo to in alio a 
OK useful contribution to the work of such" committee, including 



283 



18 

1 one or more representatives of professional organizations of 

2 technicians or professionals specializing in safety or health, 

3 but the numbor of persons so appointed to any euoh advisory 

4 oommitteo shall not oxoeod the number appointed to such 

5 committee an representatives of Federal and Stato agencies. 

6 'Any meeting of such committee shall he open to the public 

7 and an aoourato record shall he kept and made available to 

8 tho public. No membor of such oommitteo (other than rep 

9 rosontatives of operators and minors) shall have an economic 

10 intorost in any proposed rule. 

11 " (b) — Persons appointed to advisory committees from 

12 - private life shall bo compensated in the same manner hp 

13 consultants or exports under section 310fl of title 5. United 

14 - States Code. Tho Secretary shall pay to any Stato which 

15 is tho employer of a member of such committee reimburse 
1G mont sufficient to cover tho actual costs to the State resulting 

17 from ouch representatives' membership on such committee. 

18 "INSPECTIONS, INVESTIGATIONS, AND PCOORDKEEPTNO 

19 "Seo. 10 4 . (a) In order to carry out the purposes of 

20 'this x\ct, tho Secretary or tho Secretary of Health, Educa 

21 *tion, and Wolfaro, or an authorized roprosentativo of oithor, 

22 upon prosonting appropriate credentials to tho owner, oper 

23 ator, or agont in chargo, is authorized — 

24 ' "(1) to enter without delay any mine subject to 

25 this Act; and 



20-040 O - 78 - 19 



284 



19 

1 " (2) — to inspect and investigate any mine mid nil 

2 pertinent conditions, structures, machines, apparatus, do 

3 vices, equipment, records, nnd materials therein, nnd fro 

4 consult privately with any ouch operator, owner, agent, 

5 or miner. In carrying out the requirements of this see 
G tion in each inino» the Secretory >, hall make inspections 

7 of tho entire mine nt lcar . fr four time t, a year. Advance 

8 notice of nny inspection shall not he given, except that 

9 the Secretary of Health, Education, nnd Welfnre may 
-^ give advanced notice of inspections conducted in conncc 

tion w^ith or for tho purpose of research or tochniool 

aooistanoo. 



11 

12 

-o " (b) In making bin investigation*- , of accidents or other 

14 ooeurrenocB relating to h e alth or s afety in a mino under 

15 thin Act, tho Secretory may roquire the attendance and tosti 

16 mony of witnesses and tho production of evidence under 
,- oathi Witnesses shall bo paid tho samo foofi and miloago that 
lfi aro paid witn e sse s in th e court s of tho United Stater . . In 
iq cas e of a contumacy , failure , or refusal of any person to 

20 obey such an order , any di s tr i ct court of the United Statos 

21 or tho Unit e d States courts of any t e rritory or possession, 

22 within tho jurisdiction of which such per s on is found, resides, 
2 o or transacts bu s ine ss , upon the application by tho Socr - e 

24 tary» shall have juri sd ict i on to is s ue s uch person an order 

25 roquiring such person to appear to produce ovideneo if, as, 



285 



20 

1 and whon so ordorod, and to give testimony relating to 

2 tho mat-tor under investigation or in question, and any failure 

3 to obey such order of the court may bo punished by said 

4 court as a contempt thereof. 

5 " (o) (1) Each operator shall make, keep ond preserve, 

6 ^and mako availablo to tho Secretary or (he Secretary of 

7 Health, Education, and Welfare, such records regarding his 

8 aotivitios relating to this Act as tho Secretary, in coopcra 

9 tion with the Secretary of Health, Education, and Welfare, 

10 ma} r prescribe by regulation as necessary or appropriate 

11 for the enforoomont of this Act or for developing informa 

12 tion regarding the causes and prevention of occupational 

13 aocidonts and illnesr . es in tho mines subject to this Act. In 

14 order to carry out tho provisions of (bis paragraph such 

15 regulations may include provisions requiring operators to 

16 conduct periodic inspections. 

17 "(2) The Secretary, in ooopcration with tho Secretary 

18 of Health, Education, and Welfare, shall proscribe regulations 

19 requiring operators to maintain accurate r e cords of and to 

20 make periodic reports on, work - related deaths, injurios, and 

21 illnesses other than minor injuries requiring only first aid 

22 treatment and which do not involve medical treatment, loss 

23 of consciousness, restriction of work or motion, or tran s f e r to 

24 another jolt in the mines subjoot to this Act. 

25 "(ft) The Secretary, in cooperation with th e Secretary 



286 



21 

1 of Health, Education, and Welfare, nhnll io ? uio regulations 

2 requiring oporators to maintain accurate records of omployoe 

3 oxpoouros to potentially toxic materials or harmful phyeioal 

4 agents which are rcquirod to l > o monitored or m e asur e d under 

5 any applicable health and safety standard promulgated under 

6 this Aoti Such regulations shall provide minors or th e ir repre 

7 BontotivoB with an opportunity to obsorvo such monitoring or 

8 measuring, and to have acccns to tho records , thereof. Such 

9 regulations shall also moke appropriate provision for each 

10 miner or former miner to have access to such records as will 

1 1 indicate his own exposure to toxic matcr'mlo or harmful phyoi 

12 cal agent*. Each operator Khali promptly notify any miner 

13 who has been or is being exposed to toxic material or harm 

14 ful physical agents in concentrations or at levels which exceed 

15 those prcocribed by an applicable health and safety standard 

16 promulgated under section 10 J, or mandated under titlo II, 

17 and shall inform any miner who in being thus exposed of the 

18 eorroctivo action being takon, 

19 'M^) — All accident ). , including unintentional roof falls 

20 (except in any abandoned panoln or in areas which are 
2t inaoeossiblo or unsafe for inspections) » shall bo investigated 
22 - by tho oporator or his agent to dotormino tho cause and 
2: 1 the moans of preventing a recurrenc e. R e cords of such acci 

24 dents, roof falls, and investigations shall bo kopt and tho 

25 information shall bo inado availablo to tho Seoretarv or bin 



287 



22 

1 authorized representative and tho appropriate State agency. 

2 Such rooordo shall be opon for inspection by interested 

3 persons. 

4 (d) Aiiy information obtained by the Secretary, or by 

5 - the Secretary of Health, Education, and Wolfaro under this 

6 Act shall be obtained in ouch a manner ao to impooc a mini 

7 mum burden upon oporators, especially thoso operating small 

8 - buoincgg consistent with the underlying purposes of this Act. 

9 - Unnecessary duplication of e ffort in obtaining information 

10 shall b e reduc e d to tho maximum e xt e nt foasiblo. 

11 "(c) Subject to regulations issuod by tho Sooretary, a 

12 > representativ e of the operator and a representative au - 

13 thorizod by his minors shall bo giv e n an opportunity to 

14 aoeompany the Secrotary or his authorized representative 

15 during the physical inspection of any mine undor sub - 

16 section (a) for tho purpos e of aiding such inspection. Where 

17 th e re is no authorized miner r e presentativ e ; tho Secrotary or 

18 his authorized representativ e s hall con s ult with a reason - 

19 able number of miner s concerning matters of health and 

20 safety in the mine . Such representative of minors who is 

21 also an employ e e of tho operator shall suffer no loss of pay 

22 as a result of his participation in tho physical inspection made 

23 under this subsootiom To tho ext e nt that tho inspector deter 

24 mines that more than one representative from each party 

25 would furthor aid the inspection, ho con pormit each party 



288 



23 

1 to have an equal number of such additional roprooontativoo. 

2 However, only ono ouch roprooontativo of minoro who io 

3 an omployoo of tho operator nhall be entitled to ouffor no loco 

4 of pay as a rooult of such participation under the provisiono 

5 of this subsection. Complianeo with thi ; - . nubsoction shall not 

6 bo a jurisdictional pr e requisite to the e nforcem e nt of any pro 

7 virion of this Act * 

8 "(f) (1) Any minora or representatives of minoro who 

9 believe that a violation of a health or safety standard 

10 oxiat t i that threaten ?, harm, or that an imminent dangor 

11 oxists, may request an inspection by giving notioo to the 

12 Seorotary or his authorised representative of such violation 

13 or dang e r. Any such notic e dial I be r e duced to writing , shall 
1^ oot forth with reasonable particularity tho grounds for tho 

15 notioo, and shall bo oignod by the minora or representative 

16 of minors, and a copy shall b e provided tho operator or his 

17 agent at tho time of inspection, except that> upon tho roquoot 

18 of tho person giving such notic e , his name and tho names 

19 of individual miners referr e d to th e r e in s hall not app e ar in 

20 such copy or on any r e cord published, roloacod, or made 

21 availablo pursuant to subsection (g) of this soetion. If upon 

22 roooipt of such notification tho S e cr e tary determines there 

23 are roar.onablo grounds to boliovo that such violation or dan - 

24 gor exists, ho shall make a special inspection in aeoordanoo 

25 with the provi s ion s of thi s section a s s oon a s practicable, to 



289 

24 

1 determine if ouoh violation or danger oxioto. If tho Soorotary 

2 dotorniinoB there aro no reasonable grounds to believe that a 

3 violation or danger oxioto ho shall notify tho minors and 

4 rcprcocntativo of tho minora in writing of ouch determination. 

5 " (2) Prior to or during any inspection of a mine, any 

6 minors or roprooontativos of minora employed in ouoh mine 

7 may notify tho Secretary or any rcproocntativc of the Sec 

8 rotary roaponoiblo for conducting the inspection, in writing, 

9 of any violation of this Aot or of a ivy imminent danger 

10 which thoy havo reason to boliovc oxioto in ouoh mine. The 

11 Secretary ohall; by regulation, cotablioh procedures for in 

12 formal reviow of any refusal by a representative of tho Scoro 

13 tary to ioouo a oitation with rcopeot to any ouoh alleged 

14 violation or order with rospoot to such danger and shall 
1*> furnish tho minors or roprosontativo of minors requesting 

16 ouoh reviow a written otatomont of tho rcaoono for the Sec 

17 rotnry'o final diopooition of tho oaao. 

18 " (g) (1) The Secretary and Secretary of Health, Edn 

19 cation, and W e lfar e aro authorized to compilo, analyze, and 

20 publish, cither in summary or detailed form, all roports or 

21 information obtained under thio section. 

22 " (3) Tho Soorotary and tho Soorotary of Health, Edu - 

23 cation, and Wolfaro shnll each proscribo r . uoh ruloo nnd rcgu 

24 lations as they may doom necessary to carry out thoir roopon 



290 



25 

1 aibilitica under thio Act, including ruloo and rogulationo 

2 doaling with tbo inspection of minoo oubjoot to thio Aot. 

3 " (li) Whenever the Secretary findo that a mine liberates 

4 executive quoiititiut . of methane or other explosive g t v . m dur 

5 ing ifo. operations, or that a methane or other gas ignition or 

6 oxplooion has oeourred in uuoh mine which resulted in death 

7 or serious injury at any time during the previous five yoars, or 

8 .that thero exists in such mine sonic other especially hazardous 

9 condition, he shall provide a minimum of one spot inspection 

10 by hi'j authorised representative of all or part of ouch mine 

11 during — every — frve — working — day* — at — irregular — intervals 

12 for purpo s es of thin Hubacction, liberation of exoonnive quan 

13 titioB of mothano or other explosive gases shall moan liberation 

14 of more than one million cubic foot of mothano or other 

15 oxplooivo gOHoo during a twonty four hour period: Provided, 

16 however, That when tho Secretary finds that a mine liboratog 

17 more than five hundred thousand oubio foot of methane or 

18 other oxplooivo gases during a twonty four hour period, 

19 ho shall provido a minimum of ono spot inspection b} T hia 

20 authorized r e presentative of all or part of such mine every 

21 ton working days at irregular intervals: Provided further, 

22 That when the Secretary findo that a mino libcratoa more 

23 than two hundred thousand cubic feet of m e thane or othor 

24 oxplosivo gases during a tw e nty - four hour period, he ahall 



291 



26 

1 provide a minimum of one spot inGpootion by trio authorigod 

2 roprocontativo of till or part of ouch mino ovory fifteen work 

3 ing days at irregular intervals. 

4 "(i) In the event of any aeoidont — (whoth e r or not 

5 resulting in an injury or death) ooourring in a mino, tbo 

6 operator 3ball promptly notify the Secretary thoroof and 

7 shall tako appropriate measures to prevent tho dootruotion 

8 of any ovidonoo which would assist in investigating tho 

9 cause or causes thoroof. In tho ovont of any accident oo 

10 ourring in a mino wh e ro roseuo and rooovory work is 

11 nooossary, tho Soorotary or an authorized roprocontativo of 

12 tho S e orotary shall tako whatev e r action ho deoms appro - 

13 priat e to prot e ct tho life of any p e rson^ and ho may, if ho 

14 de e ms it appropriate, s upervise and direct tho rescue and 

15 rooovory aotivity in cuoh min e . 

16 " (j) In tho ev e nt of any accident ooourring in a mino, 

17 an authorigod representative of tho Secrotary, whon present, 

18 may issuo such orders as ho dooms appropriate to insure 

19 tho oafoty of any porcon in tho mino» and tho operator of 

20 puoli mino shall obtain the approval of such roprosentativo, 

21 in COnEultati™ wif]l "pprnpnntP Stfttp rpprftgQnt'atirnrj whnn 

22 foqsiblo, of any plan to recover any person in tbo mino or 

23 tO recover the H"^ Ar ™*"™ affpf.tprl arpng nf thn vn\nn 

24 to normal . 



292 



27 

1 "OITATIONQ AND ORDERO 

2 "Sbo. 105. — (a) (1) If, upon inopootion or invootiga 

3 tion, tbo Soorotary or bifi authoriaod roprosontativo boliovoj 

4 th a t an op e rator of a mino subjoot to this Aot has violated 

5 thio Act, or any rule, ordor, or regulation promulgated 

6 purouant to thio Aot, ho shall, with roaoonablo promptnooo, 

7 issuo a oiUttion to tho op e rator . Each citation shall bo in 

8 writing and ahull dooeribo with particularity tho naturo of 

9 the violation, including a reference to the provision of the 

10 Act, standard, rulo, regulation, or ordor ullogod to have 

11 boon violated. In addition, tho citation shall fix a rcaaon 

12 ablo tiino for tho abatoinont of tho violation. 

13 " (2) If a citation under ncetion 105 (a) ( 1 ) is ianicd for 

14 a violation whioh tho S e cr e tary or his authoriaod roprooonta 

15 tivo bolioveo to have boon willfully committed, or committed 
10 with gross nogligonoo, and to hav e subject e d a minor or 
17 minors to an imminent danger, th e S e cr e tary or hio author 
IB ieod representativ e shall include in th e citation a ehargo that 

19 tho violation was willfully committed, or oommittod with 

20 grooo nogligonco , and that it s ubject e d a miner or minors to 

21 an imminent dang e r, with a specific d e scription of the danger 

22 or dangora involved. 

23 " (b) If upon any folio wup insp e ction of a mino, an 

24 authorized representat i ve of t h e Secretaty finds (1) that a 
2>> violation d e scribed in a citation i ss ued pursuant to subsection 



293 



28 

1 (a) has not boon totally abated within tho poriod of timo 

2 ao originally fixod thcroin or as subsequently oxtondod, and 

3 (2) that tho poriod of timo for tho abatement should not bo 

4 further extended, he shall find the oxtont of tho area affected 

5 by the violation and ohall promptly iosuo an ordor roquiring 

6 the operator of ouch mine or hio agent to immediately oauoo 

7 all persons to bo withdrawn from, and to bo prohibitod from 

8 ontoring suoh area until an authorised representative of tho 

9 Secretary determines that such violation hag been abated, 

10 oxoopt tho following persons : 

11 "(1) Any pcreon whoac presence in such area ig 

12 noeoooary, in tho judgment of the operator of tho mino, 

13 or an authorigod repres e ntative of tho Soorotary, to 
1^ oliminato tho danger described in ordor; 

15 " (2) — Any public official whoso offioial duties ro - 

16 quire him to enter such ar e a; or 

17 " (8) Any legal or technical consultant, or any rep 

18 reson tativo of the employees of tho min e , who is a cor - 

19 tified person qualified to mako mino examinations, or is 

20 accompanied by such a p e rson, and whoso pres e noo in 

21 such area is nec e ssary, in th e judgm e nt of th e oporator 

22 of tho mine or an authorized repres e ntative of tho Sec 

23 rotary, for the proper investigation of tho conditions 
3* described in tho ordor. 

25 "(c) (1) In tho cas e of a violation of any safety or 



294 



29 

1 health standard which io of ouch naturo an oould oignificantly 

2 and substantially oontributo to the oanoo and offoot of a mino 

3 oafoty or health ha g ard, and which in caused by an unwar 

4 ranted failure of ouch operator to comply with ouch oafoty 

5 or health standards, the citation shall include a stotcmont to 

6 that effcot. If, during the name inspection or any ouhooquont 

7 inspection of ouch mine within ninety days after the ioouanoc 

8 of ouoh oitation, an authorised representative of tho Secretary 

9 findo another violation of any safety or health standard and 

10 findo ouoh violation to be also canoed by an unwarranted 

11 failure of such operator to no comply, ho nhall forthwith innuo 

12 an order requiring tho operator to cause all p e rsons in tho 

13 area affected by ouch violations, oxeopt those persons roferrod 

14 to in subsection (b) of thin section, to bo withdrawn from , 

15 and to bo prohibited from entering^ such area until an author 

16 izod representative of tho S e cr e tary d e t e rmines that such 

17 violation has been abated. 

18 "(3) If a withdrawal ordor with rospoot to any area 

19 in a mino has boon issued pursuant to paragraph (1) of this 

20 -Btt^ cootion) a withdrawal ord e r shall promptly bo issued by 

21 an authorized representative of tho Soor e tary who findo upon 

22 any subsequ e nt inspection th e e xistence in tho mino of 

23 other unwarrant e d violations until such time an an innpec 

24 tion of ouch mino discloses no such violations. Following an 

25 inspection of th e mine which discloses no unwarranted viola 



295 



30 

1 ' tiong, tho provisions of paragraph — (4-) — of thio ouboootion 

2 ' ohall again bo applioablo to that mino. 

3 " (d) During tho abatement poriod for a violation of tho 

4 applicable limit on the concentration of rcupimblo dust, the 

5 oporator of tho mino chall cauco oamploo doooribod in section 

6 302 (a) of thio x\ot to bo tokon of tho afTootod area during 

7 oaoh production shift* 

8 "As soon ao poooiblo after an order relating to failuro to 

9 abato oxooooivo duot concentrations is issued, the Sccrc - 

10 tary, upon roquoot of the operator, shall dispatch to the mine 

11 involvod a poroon or toam of poroonn, to tho extent such 

12 poroono aro available), who aro knowlodgoablo in the mothode 

13 and moano of controlling and roduoing rocpirablo duct. Such 

14 poroon or toam of persons shall r e main at tho mino involvod 

15 for ouch timo as thoy ohall doom appropriate to assist the 

16 oporator in roduoing rospirablo duot oonoontration. While 

17 at tho mino, such porsons may roquiro tho oporator to tako 

18 ouoh aotiono ao thoy doom appropriate to insure the health 

19 of any porson in tho mino. 

20 " (c) (1) — If, upon any inspection or invootigation pur 

21 ouant to ooction 101 of thio Act, tho Soerotary or an author 

22 iaod roprooontativo ohall find omployod at a mino a miner 

23 who has not received the requisite safety training under ooo 

24 tion 317A of thio x\ot, tho Soerotary or an authorised rcprc 

25 oontativo ohall inouo an order under thio section which dcclaro 



296 



81 

1 s uch min e r to b e a ha z ard to himsolf and to othoroj and 

2 requiring that ouoh minor bo immediately withdrawn from 
r> tho mine, and bo prohibited from entering the mine until an 

4 ftuthoriaod ropronontotivo of tho Soorotary dotorminoo that 

5 ouoh minor hao roooivod tho training required by oootion 
G 3 17A of thio Aot. 

7 ■ " (3) No minor who m ordered withdrawn from a mine 

8 - undor paragraph ( 1 ) of thio ouboootion ohall bo dioohargod 

9 or othorwioo diooriminatod againot booauoo of ouoh ordorj 

10 and no minor who io ordorod withdrawn from a mino undor 

11 paragraph ( 1 ) of this oubsootion shall ouffor a looo of oom 

12 ponoation during tho period noooosary for ouoh minor to 

13 roooivo ouoh training and for an authorized roprooontativo 

14 of tho Secretory to dotormino that ouoh minor has received 

15 tho roquioito training. 

16 " (f) Each citation or order issued under this sootion» or 

17 a copy or copi es ther e of, s hall bo promin e ntly postod in 

18 ttooordonoo with section 110 of this Act) and ae prcsoribod in 

19 rogulationo iouuod by tho Soorotary. 

20 " (g) No citation may be i&med under thia ncotion after 

21 tho expiration of six monthn following tho ooourrcnoo of any 

22 violation! 

23 "(h) Any ordor iooucd under oubocotion (b) or (o) 

24 ohall romain in ofToot until revoked by the S ecretary or modi 



297 



32 

1 ficd or vacated by tho Commission or tho courts pursuant to 

2 oootion 106 (o) or 107(a). 

3 "PBOCEDUDE FOU ENFORCEMENT 

4 " S ec. 106. (a) If, after an inspection or investigation 

5 tho Secretary isouco a citation or order under oootion 105, 

6 ho shall, within a reasonable timo after tho termination of 

7 ouch inspection or investigation, notify tho operator by cor 

8 tifiod mail of tho civil penalty proposed to bo assessed under 

9 section 111 (a) for tho violation cited and that tho operator 

10 has fift e en working days within which to notif}^ tho Secretary 

11 that ho wishes to con tost tho citation or proposed assessment 

12 of penalty. If tho citation contains a ohargo under oootion 

13 105(a) (3), the Secretary's notification under tho oubooo 

14 tion ohall include a proposed civil penalty closure ordor 

15 under section 111 (d) — in addition to tho proposed civil 

16 monetary penalty t If, within fifteen working days from tho 

17 receipt of the notice issued by tho Scorotary, tho operator 

18 fails to notify the Soorotary that ho intends to con toot the 

19 citation or the proposed penalty or penalties, and no notioo 

20 13 filed by any employee or representative of employees 
2i undor subsection (o) of this section within ouch time, the 

22 citation and tho penalty or penalties, as proposed^ shall bo 

23 d e emed a final ordor of tho Commission and not subject to 
04 review by any court or agency. Rofuf . nl by tho operator or 
25 his agent to accept oortifiod mail containing a notice under 



298 



33 

1 thio ouboootion ohall oonotituto rcooipt thorcof within tho 

2 moaning of thio ouboootion. — 

3 • ' (b) If the S ecretary has roaoon to boliovo that an opor 

4 ator hao failed to oorroot a violation for whioh a citation hao 

5 boon ioouod within tho period permittod for ito oorrootion 

6 (whioh poriod ohall not ond until the entry of a final ordor by 

7 tho Commiooion, in tho oaoo of any roviow proceedings under 

8 thio oootion initiated by the operator wherein the Commiooion 

9 ordors, after an oxpoditod hoaring, tho suspension of tho 

10 abatomont roquiromonto of tho citation aftor determining that 

11 tho oporator will oufTor irreparable loss or damage from the 

12 a pplication of thoso roquiromonto) , tho Secretary ohall notify 

13 tho oporator by certified mail of ouch failure and of tho 

14 penalty propoood to bo aooosood under oootion 111 by roaoon 

15 of suoh failuroj and that tho oporator hao fiftcon working 

16 dayo within whioh to notify tho Soor e tary that ho wiohoo to 

17 oontoot tho Soorotary'o notification or tho propoocd aoooooment 

18 of penalty , If, within fifteen working dayo from tho roooipt e f 

19 notification issued by tho Soorotary, tho operator fails to 

20 notify tho S e or e tary that ho intonds to cont e st tho notification 

21 or proposod ass e ssm e nt of penal ty, tho notification and aooooo 

22 mont, ao propoood, ohall bo doomed a final order of the Com 

23 mission and not subject to revi e w by any court or agonoyi 

24 Rofuoal by tho oporator or his ag e nt to acc e pt c e rtifi e d mail 

25 containing a notification issuod under this suboootion ohall 



299 



34 

1 con s titut e r e c e ipt th e reof within — the — moaning — el — thie 

2 nuboootioni 

3 "(o) (1) No poroon ohall discharge or in any manner 

4 disoriminftto against or intorforo with tho oxoroiso of the 

5 statutory rights of any mino omployoo or applicant for cm 

6 ploymcnt subject to this Act hooauoo ouch omployoo hao filed 

7 or made a complaint undor or rolatod to this Aot, inoluding 

8 a complaint notifying tho oporator or tho oporator's agent, 

9 or the employ oo'o labor or health and safety roprooontativc 

10 of an allogod danger or oafoty or health violation in the mine, 

11 or booauoo ouch omployoo is the subjoot of modioal ovalua 

12 tions and potential transfer under a standard published pur 

13 smut to oootion — 102 (a) — of thin Aot, or booauoo oueli 

14 omployoo hao instituted or caused to bo instituted aity pro 

15 occding undor or related to thio Aot or hao tootificd or in 

16 about to testify in any euoh proceeding, or booauoo of the 

17 oxoroiso by such omployoo on behalf of himself or othorn of 

18 any statutory right afforded by thio Aot . 

19 " (2) Any mino omployoo or applicant for omploymont 

20 who bclicvoo that ho has boon discharged, intorforod with, 

21 or otherwise discriminat e d against by any porcon in viola 

22 tion of this subsection may, within thirty days aftor such 

23 violation occurs, file a complaint with tho S e erotary alleging 
^4 ouoh discrimination . Upon receipt of such complaint, the 
25 B oorotary ohall cau s e s uch investigation tc bo made ac ho 

20-040 O - 78 - 20 



300 



35 

1 (loom s appropriate. If upon 9uoh investigation, the Sccrc - 

2 tary dotorminoo that tbo provisions of this subsection have 

3 been violatod, ho shall immediat e ly filo a complaint with tho 

4 Commis s ion, with service upon the allogod violator and the 

5 mino omploy e o or applicant for employment, alloging ouoh 

6 discrimination or interference and proposing an order grant 

7 ing appropriate roliof. The Commission shall afford an op 

8 portunity for a hoaring (in accordanc e with s e ction 554 of 

9 title 5, United States Codo, but without regard to (s ubsection 

10 (a) (3) of suoh section) and thereafter shall iesuo an order. 

11 based upon findings of faot, affirming, modifying, or vacatin g 

12 tho Secr e tary's propos e d ord e r, or dir e oting other appropr i- 

13 ate roliof ; and suoh order shall b e com e final thirty days aft e r 

14 its issuance. Tho Commis s ion shall have authority in ouoh 

15 procoodings to requir e a p e rson committing a violation of 

16 this s ubs e ction to take such affirm a tive a ction to abate th e 

17 violation as tho Commission dooms appropriate, including , 

18 but not limited to, the rehiring or reinstat e ment of the 

19 omploy ee to his former po s ition with back pay and intorost . 

20 Tho oomplaining employee or applicant may prosont addi 

21 tional ovidenc e on his own behalf during any hearing hold 

22 pursuant to this paragraph. 

23 "(3) Within ninety days of tho rocoipt of a complaint 

24 filed under paragraph (2) of this subsection, tho Soorotary 

25 shall notify tho mine employee or applicant for employment , 



301 



36 

1 in writing, of his determination whether a violation has oo - 

2 curr e d. If th e Secretary, upon investigation, determines that 

3 tho provisions of this subsootion have not been violated, tho 

4 complainant shall havo tho right, within thirty days of notice 

5 of tho Secretary's determination, to file an action in his ow b- 

6 behalf before the Commission, oharging discrimination or 

7 interference in violation of paragraph (1) of this subsootion. 

8 Tho Commission shall afford an opportunity for a hearing 

9 (in aooordanoo with sootion 551 of titlo 5, United States 

10 Codo, but without rogard to subsection (a) (3) of such soo - 

11 tion) , and th e r e aft e r shall issuo an order, based upon find 

12 ings of fact, dismissing or sustaining tho complainant's 

13 ohargos and, if tho charg e s ar e sustained, granting such relief 

14 as it dooms appropriat e , including, but not limited to, an 

15 ordor requiring the rehiring or reinstatement of the mine 

16 employee or applicant for employment to his former position 

17 with back pay and intorost. Such ordor shall become final 

18 thirty days aftor its issuance. Whenev e r an order is issuod 

19 sustaining tho employe e 's charges under this paragraph, a 

20 sum equal to the aggr e gate amount of all costs and expenses 
2i (including attorney's foos) as dotorminod by tho Commis 

22 sion to havo boon reasonably incurred by tho mino employee 

23 or applicant for employment for, or in connootion with, the 

24 institution and prosecution of such proceedings shall be 

25 assess e d against the person committing s uch violation . Pro - 



302 



37 

1 ooodings undor this section shall bo expedited by tho Sooro - 

2 tary and tho Commission. Any ordor iooucd by tho Commis 

3 sion undor this paragraph shall bo subject to judicial roviow 

4 in aooordanoo with sootion 107 of this Act. Violations by any 

5 porson of paragraph ( 1 ) of this subsootion shall bo oubjoot 

6 to tho provisions of sootion 109 and 111 (a) of this title" . 

7 "(d) U, within fiftoon working days of roooipt thoroof , 

8 an operator of a inino notifios tho Soorotary that ho intends to 

9 oontost the issuance or modification of an ordor issued undor 

10 sootion 105, or a notification issued undor subsootion (a) or 

11 (b) of this sootion, or tho roasonablonoss of tho length of 

12 abatem e nt time fix e d in a citation or modification thereof 

13 issued und e r s ection 105 , or a ny min e r or repr e s e ntative of 

14 minors notifios tho S e cr e tary of an int e ntion to contost tho 

15 issuance, modification, or t e rmination of any ordor issued 

16 under sootion 105, or tho r e asonabl e n e ss of tho longth of time 

17 get for abatement by a citation or modification thereof issued 

18 under section 105, tho S e cretary shall immediately advise 

19 the Commission of such notification, and tho Commission 

20 shall afford an opportunity for a hearing (in accordance with 
2i section 551 of titl e 5, United States Code, but without regard 

22 to subsection (a) (3) of such soction) , and thereafter shall 

23 issue an order, based on findings of fact, affirming, modifying, 

24 or vacating tho Secretary's citation, ordor, or proposed pen 

25 alty, or directing other appropriate r e lief; such ordor shall 



303 



38 

1 b e com e final thirty days aft e r its is s uance. Th e rulos of proco - 

2 dure proscribed by tho Commission shall provide affoctod 

3 minors or roprosontativos of affootod minors an opportunity 

4 to participate as parti e s to hearings under this soction. Tho 

5 Commission shall take whatever action is necessary to 

6 oxpodito proceeding s for hearing appeals of orders issued 

7 under section 105. Tho Commission may not grant temporary - 

8 roliof from tho issuanoo of any ordor undor subsootion 105 (o) 

9 of this Act. 

10 "judicial review 

11 "Sec. 107. (a) Any porson adversely affootod or ag 

12 gri e v e d by an ordor of tho Commission issu e d under this Act 

13 may obtain a review of such ordor in any Unitod Statos court 

14 of appeals for tho circuit in which tho violation is allogod to 

15 have ooourrod or whoro tho oporator has its principal office , 

16 or in tho Unit e d - Stat es Court of App e al s for th e District 

17 of - Columbia Circuit, by filing in suoh court within thirty 

18 day s following the issuanc e of such ord e r a written p e tit i on 

19 praying that th e ord e r b e modifi e d or se t asido> A copy of 

20 suoh petition shall b e forthwith transmitt e d by tho clerk of 
2i th e court to the Commi s sion and to the other parti es , and 

22 thereupon th e Commi s sion shall file in the court th e r e cord 

23 in the proceeding as provided in section 2112 of title 28, 

24 United Stat e s Code . Upon such filing , the court shall have 

25 oxolusivo jurisdiction of the proceeding and of tho question 



304 



39 

1 d e t e rmin e d therein, and sh a ll have powor to grant ouoh torn 

2 por&ry relief or restraining order as it dooms juot and propor, 

3 and to mako and enter upon the ploadingo, tootimony, and 

4 proooodinffiNiot forth in ouoh rooord a dooroo affirming, modi 

5 ' fying, or sotting osido, in wholo or in part, the ordor of tho 

6 Commission a nd e nforcing th e s am e to th e e xt e nt th a t s uch 

7 ord e r i s affirmed or modifi e d. Th e comm e nc e m e nt of prooood 

8 ings under this eub se otion s hall not, unl e s s ord e rod by tho 

9 court, operate a s a stay of tho ordor of tho Commission. - No - 

10 objootion th a t ha s not boon urg e d b e for e th e Commission 

11 shall bo eonsidorod by tho oourt, unlo^i tho failure or nogloot 

12 to urgo suoh objootion s hall b e e xcus e d because of oxtraordi 

13 nary oiroumstanc e s, Th e findings of th e Commi s sion with r - o 

14 sp e ot to qu e stion s of fact, if s upport e d by s ub s tantial evidence 

15 on th e r e cord consid e r e d a s a whol e , s hall b e conclu 6 ivo> If 

16 any party shall a pply to th e court" for l e av e to adduoo addi 

17 tional ovidonoo and shall show to th e satisfaction of tho oourt 

18 that ouoh additional evidence is mat e rial and that thoro wore 

19 reasonable grounds for th e failur e to adduc e 6 uch ovidonoo in 

20 tho hearing befor e th e Commi ss ion, the court may ordor suoh 

21 additional e vid e nce to be taken before the Commi ss ion and 

22 to bo mado a part of th e record . Th e Commission may modify 

23 its findings a s to the fact s , or make new findings, by roason 

24 of additional evidence s o taken and filed , and it shall file 

25 ouoh modifi e d or new findings, which findings such rocpoot 



305 



40 

1 to question of faot, if supported by substantial ovidonoo on 

2 tho rooord considered as a whole, shall be conclusive. The 

3 Commission may modify or sot asido its original or dor 

4 by roason of such modified or new findings of fact* Upon 

5 tho filing of tho rooord with it, aftor ouch romand proceedings, 

6 tho jurisdiction of th e court shall be exclu s ive and it s judg ^ 

7 mont and docroo shall bo final, except that tho oamo shall be 

8 subject to revi e w by th e Supromo Court of tho United Statos, 

9 as provided in section 1251 of titl e 28j Unitod Statos Code. 

10 Potitions filod undor this subsection shall bo hoard oxpodi 

11 tiously* 

12 "(b) Tho Soorotary may also obtain roview or onforoc 

13 m e nt of any final order of the Commi ss ion by filing a 

14 petition for such r e li e f in th e United State s court of appoals 

15 for the circuit in which the alleged violation occurred or 

16 in which th e operator ha s it s principal office or in the Court 

17 of Appeals for th e Di s trict of Columbia Circuit, and tho pro - 

18 vision of subsection (a) shall govern suoh proceedings to 

19 tho ext e nt applicable. If no petition for review, as provided 

20 in oubsootion (a) , is filed within thirt}^ day s aft e r issuance 

21 of tho Commi ss ioner' s order , the Commis s ion' s findings of 

22 fact and order shall b e conclusiv e in conn e ction with any 

23 p e tition for enforcement which is filed by the Secretary 

24 aft e r tho e xpiration of s uch thirty - day poriod. In any ouch 

25 eas e , as well a s in the ca s e of a noncont e st e d citation or 



306 



41 

1 notification by the Socrotary whioh has bcoomo a final ordor 

2 - of tho Commiooron under oubooction (a) or (b) of ocotion 

3 106, the clerk of the court, unices othcrwioc ordered by the 

4 - court, shall forthwith enter a dcoroc enforcing the ordor and 

5 shall transmit a copy of ouch dooroo to tho Secretary and the 

6 operator namod in tho potition. In any oontompt prooooding 

7 brought to enforce a decree of a court of appoalo ontorod 

8 p ursuant to thio subsection or subsootion — (a), tho court 

9 of app e al s may a ss ess tho penalti e s provid e d in eootion 

10 11 1» in addition to invoking any othor availablo romodio s. 

11 "moOEDUHEB TO COUNTERACT DANCEKOUB CONDITIONS 

12 "Sec* 10 8 * (a) If* upon any insp e ction or investigation 

13 of a mino whioh is subject to this Act* an authori s ed ropro 

14 » jontativo of tho S e orotary finds that conditions of praotiooc 

15 jn such min e ar e such that an immin e nt dang e r e xists, such 

16 ■ roprosontativo shall dot e rmino tho extent of th e aroa of suoh 

17 mino throughout whioh tho dongor exists, and issuo an ordor 

18 squiring th e operator of s uch mino to caus e all p e rsons, 

19 e xc e pt thos e r e ferrod to in soction 105 (b) , to bo withdrawn 

20 from, and to b e prohibit e d from ent e ring* suoh aroa until 

21 > an authoriz e d repre s entativ e of th e Secr e tary d e termin e s that 

22 tiuoh imminent dang e r no long e r e xists. The issuano e of an 

23 ordor undor this s ubs e ction shall not prooludo tho issuanc e 

24 of a citation under s ection 105 or tho proposing of a penalty 

25 undor eootion 111. 



307 



42 

1 - '(b) (1) If, upon any inopootion or invootigation of a 

2 fnino, an authorized roprooontativo of tho Soorotary find a 

3 ^Ar) — that potentially dangorouo oonditiono oxiot therein 

4 which havo not yot rosultod in an imminont danger, (B) 

5 tiiat such conditions cannot bo offoctivoly abated through 

6 tho ubo of e xisting t e chnology, and — (-G) — that roasonablo 

7 - assurance cannot b e provided that th e continuanc e of mining 

8 operations und e r suoh conditions will not r e sult in an im - 

9 minont danger, ho shall dotormino tho area throughout ■ whioh 

10 . such conditions e xists and th e r e upon issu e a notice to th e 

11 oporator of tho mino or his agont of such conditions, and shall 

12 file a oopy th e r e of, incorporating his findings th e rein, with 

13 th e S e or e tary and with tho r e pr e sentativ e s of tho minors of - 

14 «uoh min e i Upon r e c e ipt of such oopy, th e S e crotary shall 

15 oauso suoh further investigation to b e mad e as ho doomc 

16 appropriate, including an opportunity for tho op e rator or a 

17 roprosontativo of tho min e rs to pres e nt information relating 

18 io suoh notic e. 

19 " (2) Upon tho oonolusion of such inv e stigation and an 

20 opportunity for a public h e aring upon r e qu e st by any inter - 

21 est e d party, th e Secretary s hall make finding s of fact, and 

22 shall , by d e ci s ion incorporating such finding s thoroin, either 

23 - canc e l th e notice issued under this s ubsection or issu e an 

24 order requiring th e operator of s uch min e to causo all porcons 

25 in th e ar e a affected, except tho s e per s ons r e f e rrod to in soo - 



308 



43 

1 tion 105(b) , to bo withdrawn from, and bo prohibited from 

2 entering , such ar e a until tho Seorotary, after a publio hoaring 

3 affording all interested poroono an opportunity to prooont 

4 their vi e ws, dotorminon — that such conditions havo boon 

5 abat e d . Any h e aring under thir . paragraph shall bo of rooord 

6 and shall b e e ubj e ct to sootion 554 of title 5 of tho United 

7 Stat e s Code but without , r e gard to subs e ction ( a ) (3) . 

8 " (o) Findings and orders iscuod pursuant to subs e ction 

9 - (a) of this sootion shall contain a dotailod description of the 

10 conditions or pr a ctices which causo and constitut e a situation 

11 - of immin e nt dang e r , and all orders issued pursuant to this 

12 se ction s h a ll contain n description of tho area of tho mine 

13 throughout which persons must bo withdrawn and prohibited . 

14 " • (d) Eftoh finding mado and ordor is s ued undor thi s 

15 sootion shall be given promptly to th e op e rator of th e min e 

16 to which it portainn by tho poroon making ouch finding or 

17 ord e r, and all of such findings and ordors shall bo in writing , 

18 and shall bo signod by the porson making thorn . Any order 

19 i ssued pursuant to subsoction (a) or (b) may bo annulled^ 

20 ' Canceled, or ro vised by an authorized r e pres e ntativ e of th e 

21 S e cr e tary , Any ordor issu e d under subsoction (a) or (b) 

22 shall r e main in e ff e ct until rovokod by th e Socrotary or 

23 ' modified or vacated by tho Commission , or tho courts pur - 

24 suant to soction 107 (a) or 10 8 (o) . 

25 "(e) (1) Any operator notifi e d of an ordor und e r this 



309 



44 

1 s e ction or any ropr e s e ntativo of minors notified of tho ioou 

2 anc e , modification, or t e rmination of suoh an ordor may apply 

3 4o tho Commission within ton days of such notification for 

4 annulment or revision of such order. Tho Commission shall 

5 forthwith afford an opportunity for a hoaring (in aocordanoo 

6 with section 554 of titlo 5, Unitod Statos Codo, but without 

7 rogard to subsoction (a) (3) of suoh sootion) and thoroaftor 
S ehall icouo an order, basod upon findings of fact, vacating, 
9 affirming, modifying, or terminating tho Soorotary'o ordor. 

10 * Tho Commission may not grant tomporary roli e f from tho 

11 issuanco of any ord e r und e r subsoction (a) of this sootion. 

12 "(2) Tho Commission shall tako whatovor aotion io 

13 « nocossary to expodito procoodings undor this subsootiont 

14 ■ 'injunction s 

15 "Sec. 109 . (a) (1) Tho Socrotary ma}^ instituto a oivil « 

16 - action for roliof, including a permanent or temporal injuno - 

17 4ion, r e straining ord e r, or any other appropriat e ordor in tho 

18 ■ district court of tho Unit e d Statos for tho distriot in which a 

19 mino is located or in which tho operator of suoh mino hao 

20 his principal office, wh e n e vor such operator or hio agont 

21 (a) violat e s or fails or r e fuses to comply with any ordor or 

22 dooision issued under thi s Act , or (b) interf e r e s with, hin 

23 dors, or delays th e Secretary or hi s authorized representative, 

24 or tho Socrotaiy of Health, Education , and Wolforo or his - 

25 authorized roprosentative, in carrying out tho provioiono of 



310 



45 

1 th e Act, or (c) refuses to admit such roproscntativon to tbo 

2 rninO) or (d) rofuc e s to porinit tho inspootion of tho mine , o r 

3 tho investigation of on accident or occupational diroaoo oo 

4 curring in , or connoctod with, r . noh mine, or (o) rofuncn to 

5 furnish any information or report r e quested by tho Scorotary 

6 or tho Scorotary of Health , Education, and Wolfaro in fur 

7 thcranco of tho provisions of this Act, or (f) rofusor . to per 

8 - mit acces s to, and copying of, such records as tho Scorotary 

9 or tho Secretary of Health, Education, and W e lfare deter 

10 miner , nec e ssary in carrying out the provisions of this Act. 

11 "(3) Tho Secretary may institute a civil action for 

12 relief including permanent — or t e mporary injunction, — fo~ 

13 straining ord e r, — or any other appropriate — order in tho 

14 district court of th e Unit e d States for tho district in whioh 
l ,Fj tho mine is locat e d or in which th e oporator of suoh mino 
16 has his principal office whenever th e Secretary boliovoo that 
1? th e operator of a min e is e ngaged in a pattorn of violation 

18 of tho h e alth and safoty standards of this Act, which in tho 

19 judgment of tho Secretary constitutes a continuing hazard 

20 to tho health or safety of miners, 

21 "(b) In any action brought under subsection (a) of this 

22 pootion, tho court shall have jurisdiction to provido such roliof 
2^ qs may be appropriate . In the case of a n a ction under sub - 

24 pection (a) (2) , the court shall in its order require such ac 

25 quronoo or affirmativo st e ps as it d ee mg neces s ary to ascuro 






311 



46 

1 it se lf that th e prot e ction afford e d to min e rs und e r this Aot 

2 shall bo providod by tho oporator. T e mporary r e straining 

3 ordoro ohall bo ioouod in aooordanoo with rulo 65 of tho Fod 

4 e r a ] Rulos of Civil Procodur e , as am e nd e d, excopt that the 

5 timo limit in such ord e rs, whon issu e d without notico, chall 

6 b e s e v e n days from tho dato of ontry. Except as othorwioo 

7 providod h e r e in, any r e lief granted by tho court to onforoo 

8 < tn order und e r clau s e (a) of this s e ction shall continuo in 

9 e ff e ct until tho compl e tion or final t e rmination of all prooood 

10 ings for r e vi e w of such ord e r under thi s titl e , unloss, prior 

11 ' thor e to, tho district court granting s uch r e li e f s e ts it asido or 

12 - modifies it. In any action instituted imd e r this soction to on 

13 forc e an order or decision issued by the Commission or tho 

14 - Secr e tary aft e r a public hearing in a ccordanc e with soction 

15 - 554 of titl e 5 of th e United State s Code, the findings of the 

16 ■ Commission or tho S e cr e tary, as th e caso may bo, if oup 

17 portod by s ub s tantial e vid e nce on th e r e cord considorod ao 

18 a whole, shall bo conclusive . 

19 "PO S TING OF NOTICE S , ORDER S , AND DECISIONS 

20 "■■ Sec, 110 (a) At each min e subject to this Aot thoro 

21 shall bo maintain e d an offico with a con s picuous sign dosig - 

22 nating it as the office of the mine, and a bulletin board at ' 

23 ■ cuch office or a t some conspicuou s plac e near an ontranoc 

24 > of tho min e , in such manner that notices , ord e rs, citations , 

25 and decisions required by law or regulation to bo postod on 



312 



47 

1 « tho min e bulletin board m a y b e po s tod th e r e on, b e ea s ily 

2 visiblo to all p e rsons desiring to r e ad th e m , and b e prot e ct e d 

3 - again s t damago by woathor and against unauthorised ro 

4 - movaJ . A oopy of any notic e , ord e r, oitation, or dooision ro 

5 quirod by this Act to b e given to a n op e rator s hall be do - 

6 4ivorod to tho offioo of tho affootod mino, and a oopy ohoU 

7 > b e immediat e ly po s t e d on th e bull e tin bo a rd o f s uch min e 

8 by tho oporator or his agent for not l e ss than thirty days . 

9 "(b) The S e cr e tary s hall (i) oaus e a oopy of any notioo , 

10 ord e r , citation , or deci s ion r e quired by th is Act to bo givon 

11 - to a n op e rator to b e m a il e d imm e di a t e ly to a r e pr ese ntativ e 

12 of tho min e rs in th e aff e ot e d min e , and (ii) o a use a oopy 

13 ther e of to h e mailed to tho public official or agency of tho 

14 Stat e ch a rg e d w i th admini ste ring St a t e l a w s , if a ny , r e l a ting 

15 - to health or safety in suoh min e. Such notioo, ord e r, oitation , 

16 or dooioion shall bo available for public inspoction . 

17 "(o) In order to insur e prompt compliance with any 

18 notio e , order , citati o n, or dec isi on i ss ued under this Act, tho 

19 . authoriz e d repre s entative o f the Secret a ry m a y deliv e r s uch 

20 notioe, order , citati o n , o r d eci si on to -an agent of t h e oper a tor , 

21 and such ag e nt shall immediately tak e a ppropriat e m e asur e s 

22 to inouro compliance with s uch notice , order , citation^ or 

23 dooision . 

24 ■■ ' (d) Eaob operator of a mino Bubjoot to thin Act ohall 

25 . file with the Secrct a r}r the namo and addrooo of ouch mine 



313 



48 

1 and tho nomo and addroos of tbo porson who oontrolc or 

2 operates the mine. Any revisions in auob namoo or addrossos 

3 shall be promptly filed with the Secretary. Eaoh operator 

4 of a mine subject to this Act aboil designate a responsible 

5 ' official at ouch mino ao the principal officer in charge of 
G ' health and safety at suoh mine, and such official shall receive 

7 a copy of any notioo, ordor, citation, or dooioion ioouod 

8 qndor this Act affecting ouch mino. In any oaoo, whoro tho 

9 « mino io subject to tho control of any person not directly 

10 involved in the daily operations of the mine, there shall 

11 he filed with the Secretary the name and address of such 

12 - person and tho name and address of a principal official of 

13 ■ ouch porson who oholl havo overall responsibility for tho 

14 conduct of an offootivo hoalth and oafoty program at any 

15 - mine subject to tho control of ouch person, and such official 

16 shall receive a copy of any notioo, order, citation, or do 
1' - 0101011 isouod affooting any ouch mino. Tho moro dooignation 
1° of a health and safety offioial under this oubscotion shall not 

19 be construed as making such offioial subject to any ponalty 

20 tinder this Act. 

21 ^PENALTIES 

22 " S eo. 111. (a) The operator of a mine in which occurs 

23 a violation of a provision of this Act or a safety or health 

24 - standard pronoribod by or under thio Aot, or any rjilc, order, 

25 or regulation promulgated pursuant to this Aot, shall be 



314 



49 

1 Qoooppod o civil penalty of not more than $10,000 for on eh 

2 ouch violation . 

3 "(b) Any operator who fails to oorroot a violation for 

4 ' which n citation has been isnuod under section 105 (a) within 

5 the period permitted for its correction (which period shall 

6 - not end until the entry of a final order by tho Commission , 

7 in the ease of any review proceedings under soction 100 

8 initiated by the operator wherein tho Coinmi^ion orders, 

9 after an expedited hearing, (ho suspension of the abatement 

10 r equirements of the citation after determining that tho opor 

11 » ator will suffer irreparable loss or damage from the applica 

12 - tion of those requirements, or until the entry of an ordc r-ef 

13 the court, in the ease of any review proceedings under sec 

14 <ion 107 initiated by tbo operator wherein the court orders 

15 - tho suspension of the abatement requirements of the oita 

16 tion), may bo assessed a civil penalty of not more than 

17 41,000 for each day during which such failuro or violation 

18 continues . 

19 "(c) Whenever a corporate operator violates a provision 

20 of this Act or a safety or health standard proscribed by or 

21 - under this Act, or any rule, ordor, or regulation promulgated 

22 purouant to thio Act, any director, officer, or agont of cuoh 

23 " corporation who knowingly authorised, ordorod, or carried 

24 out such violation shall bo subject to tho oamo civil penalties, 



315 



50 

1 - finoe, and imprisonment that may bo impocod upon a poroon 

2 - under subnotion (a), (b), (c), (f),or (g) of tliio ocotion . 

3 "(d) Any operator who willfully, or with gross ncgli 

4 gonoo, violates a provioion of thia Aot or a cafoty or health 

5 standard prescribed by or under this Aot, or any rule, order, 

6 or regulation promulgated pursuant to thio Act, and thereby 

7 causes a minor or minora to be subjected to imminent danger, 

8 chall bo oubjoot to a civil penalty closure ordor by the Com 

9 mission, which order shall: (i) order the mine cloned for a 

10 specified period not to exceed thirty working days, (ii) pro 

11 vido that the mine may not be roopenod after such period 

12 except upon a subsequent order and finding by tho Commie 

13 sion that no unabated safety or health violations oxict at nuoh 

14 mine (except violations for which the period for abatement 

15 has not expired) , and (hi) provide that during the period of 

16 closure tho operator chall pay tho miners at th e ir regular 

17 hourly ratos for tho hoiirs thoy would havo worked had tho 

18 mine not been ordered closed, except any miner or minors 

19 found by the Commission to have willfully or with gross 

20 negligence contributed to tho violation or violations which 

21 gave rise to tho cloouro ordor . 

22 "(c) Any operator who willfully violates a provioion of 

23 this Aot or a safety or hoalth standard proscribed by or undor 

24 this Aot, or any rulo, ordor, or regulation promulgated pur 

25 ouant to this Act, chall, upon oonviction, bo punished by ft 

20-040 O - 78 - 21 



316 



51 

1 fine of not more than $ 25,000 or by imprisonment for not 

2 more than one year, or by hoth ; except that if the conviction 

3 io for a violation committed after a first conviction of nuoh 

4 person for nny violation of thin Aot, puni s hment s hall be a 

5 fine of not moro than $o0,000 or imprisonment for not more 

6 than five years, or hoth. 

7 ^^-ffy — Any person who gives advance notice of any 

8 -i nopootion to bo conducted under this Aot shall, upon convio 

9 4 ion, bo punished by a fine of not more than $ 1,000 or by 

10 imprisonment for not more than six months, or by hoth. 

11 - '(g) Whoovor knowingly makes any fal s e s tatomont; 

12 representation, or certification in any application, record, 

13 report, plan, or other document filed or required to be main 

14 tained pursuant to — tim — A ot ^ha4^ — u pon conviction, — be 

15 punish e d by a fino of not moro than $10,000, or b} r imprison - 

16 ment for not more than six months, or by both. 

17 " (h) Any operator who violates any of the posting re 

18 quiromonts, an proscribed under tho provisions of this Act, 

19 shall be assorted a oivil ponalty of up to $10,000 for each 

20 violation. 

21 "(i) Any miner who willfully violates the mandatory 

22 safety standards relating to smoking or the carrying of 

23 smoking mat e rials) match e s, or light e r s s hnll bo cubjoot to a 

24 oivil pennlty aseosRed by the Commission of not moro than 

25 $250 for each occurrence of such violation. 



317 



52 

1 - ( j ) Whoever knowingly distributes, sella, offers for 

2 oalo, introduces, or dolivore in oommoroo any oquipmont for 

3 uoo in a mino, including, but not limited to, oompononta 

4 and aoocooorieo of such oquipmont, which io represented ao 

5 complying with tho provisions of this x\ct, or with any spec ■ 

6 ification or regulation of tho Soorotary applicable to ouch 

7 oquipmont, and whioh does not so comply, shall, upon 
S oonviotion, bo puniohed by a fine of not more than $25,000 
9 or by imprisonment for not moro than ono year, or by both. 

10 "(k) The Commission shall have authority to acce ss 

11 all civil penalties and to issue all civil penalty closure orders 

12 provided in this Aot. In assessing civil monetary penalties, 

13 the Commission shall give duo consideration to tho gravity 

14 of tho violation, tho good faith of the person charged, the 
history of previous violations^ and tho appropriateness of tho 
ponalty with rospoct to tho size of tho business of any mine 

17 

oporator being charged: Provided, That, in proposing civil 

-I Q 

penalties under this Aot, tho Secretary may rely upon a sum - 
mary review of tho information available to him and shall 
not bo required to make findings of fact concerning tho above 

TaTTTTTrST 

99 

f '(l) Civil penalties owed under thi s Act shall bo paid 
to the Secretary for deposit into tho Treasury of the United 

94 

States and ahnll accrue to the United States. 



318 



53 

1 "(m) Thio sootion ohall not bo appliooblo with roopoot 

2 to title IV of this Act, 



4 "Sbo. 112. If a mine or area of a mine is closed by 

5 an order ioouod undor ooetion 104, ocotion 105, or section 

6 10 8 of thio title, all minero working during tho ohift whon 

7 ouoh ordor wao ioouod who arc idled by ouch order shall be 

8 entitled, rogardlooo of tho rooult of any roviow of ouoh order, 

9 to full compensation by tho operator at their regular ratco of 

10 pay for frho poriod they are idled, but for not more than the 

11 bakmoo of ouoh ohift. If ouoh ordor io not terminated prior 

12 to the next working ohift, all minero on that ohift who are 

13 idled by ouoh ordor shall bo entitled to full oomponoation by 
1^ the operator at thoir regular ratos of pay for the period they 

15 aro idled, but for not mor e than four hours of ouoh ohift. If a 

16 niino or aroa of a mino is olosod by an ordor ioouod under 
IT scotion 105 or oootion 10 8 of thio titlo for a failure of the 
IS operator to oomply with any hoalth or safety otandard, all 
13 minora who aro idl e d du e to such ordor shall bo fully oom 

20 pcnoatod after all intorootod parties aro given an opportunity 

21 for a public hearing, which shall bo oxpoditod in ouoh eaooo, 

22 and after such order io final by the operator for lost time at 

23 their regular ratoo of pay for ouoh time ao tho minero arc 

24 idled by ouoh clooing, or for ono wook, whiohovor io tho 



319 



54 

1 lcooor. Whcncvor an operator violates or faila or rcfusco to 

2 oomply with any ordor iseuod undor oootion 101, oootion 

3 105, or oootion 10 8 of thio Aot, all minora omploycd at the 

4 affootod mino who would liavo boon withdrawn from, or 

5 proventod from ontoring, suoh timo or area thorcof as a 

6 rooult of suoh order shall be entitled to full compensation by 

7 the operator at their regular ratca of pay, in addition to pay 

8 roooivod for work porformod after ouoh order wa3 issued, 

9 for the period beginning wkon ouoh ordor wao issued and 

10 ending when suoh order is complied with, vacated, or ter 

11 minatod. Tho Commiooion shall have authority to order com 

12 penoation due undor thio seotion upon tho filing of a com 

13 plaint by a miner or his representative and after opportunity 

14 for hearing subject to section 554 of title 5, United States 

15 UOQC 

16 "ADMINISTRATIVE PROVISIONS 

17 "Sbo. 113. — fa} — The Secretary is authorized and 

18 directed to administor tho provisions of this Aot through a 

19 Mine Safety and Health Administration established under 

20 section 102 of tho Fodoral Mino Safoty and Health Amend 

21 m e nts Act of 1977 . Th e S e cr e tary, acting through tho Assist 

22 ant Soorotary for Mino Safety and Hoalth, ohall havo author 

23 ity to appoint, oubjoot to tho oivil sorvioo lawo, ouoh officers 

24 and employooo as h e ma}r deem nocossary for tho administra 

25 tion of thio Aot, and to prescrib e pow e rs , dutios, and rcoponoi 



320 

55 

2 ■k ilitioo of all offiooro and employ coo engaged in the admiuis 

2 tration of thia Aot. 

3 "(b) Exoept as provid e d in sootion 518(a) of title 2 8 , 

4 United States Code, relating to litigation before the Supreme 

5 ^ jourt, the Solicitor of Labor may appear for and represent 
q the Sec r etary in any civil litigation brought under thia Act - . 

7 'TUB FEDEHAL MINE OAFCTY AND HEALTH 

g REVIEW OOMMIQQION - 

9 "Sec. 11 4 . (a) The Federal Mine Safety and Health 

10 Krvicw Commission is hereby established. The Commission 

H shall f onoint of fivo members, appointed by tho rrooidont by 

22 and with the advice and consent of the Senate, from among 

13 persons who by reason of training, edueation, or oxporionoo 

14 aro qualified to carry out the functions of tho Coinmuinion 
25 undor this Aot. Tho President shall designate one of the 
IQ mcmbcr3 of tho ComniiBBion to eorvo an Chairman. 

17 " (b) (1) Tho torms of tho members of tho Commission 

15 shall be six yooro, oxoopt that — 

^9 " (A) memb e r s of th e Commission , first taking office 

2Q after tho date of onaotinont of tho Mine Safety and 

2i -H^t-. kh Amondmonto Aot of 1977, shall eorvo, ao denig 

22 natcd by th e President at the tim e of appointment, ono 

23 for a term of two year s , two for a term of four ycaro, 

25 - " (B) a vacancy caused b}r the death, r e signation, or 



321 



56 

1 removal of any memb e r prior to tbo expiration of tbo 

2 torm for which ho woo appointed ohall be filled only for 

3 tbo romaindor of such un e xpired t e rm . 

4 Any m e mber of tbo Commiooion may be removed by the 

5 President for ineffioieno}^ neglect of duy, or malfeasance in 

6 office. 

7 "(2) The Chairman ohall be responsible on behalf of 

8 the Commiooion for tho administrative operations of tho 

9 Commission. The Commiooion ohall appoint such omployoon 

10 as it dcomo noooooary to aooiot in the performance of the 

11 Commission's functions and to fix their compensation in 

12 accordance with tho provisions of chapter 51 and oubchaptor 

13 III of chapter 53 of title 5, United Statco Code, relating to 

14 classification and goneral pay rat e s. Upon tho effective date 

15 of the Federal Mine Safety and Health Amendments Act of 

16 1977, the adminiotrativo law jndgos assigned to tho Arling 

17 ton, Virginia, Facility of the Office of Hearings and Appeals, 

18 United States Department of the Interior, ohall be auto - 

19 matioally transferred in grade and position to tho Fodcral 

20 Mine Safety and Health Roviow Commission. Notwithotand 

21 ing the provioiono of section 559 of titlo 5 of the United 

22 S tates Code, the incumbent Chief Administrative Law Judge 

23 of the Office of Hearings and Appeals of th e Department of 

24 4he -i nterior assigned to the Arlington, Virginia, facility 

25 shall have tho option, on tho effective date of the Federal 



322 



57 

1 Mino Safety and Hoalth Amondiuoutu x\ot of 1077, of trniw 

2 forring to tho CommiBcion ao on Adnnniutrativo Law Judgo» 

3 in tho oamo grado and pooition nu tho otlior Adminiotrativo 

4 Law Judgoo. Tho Administrative Law Judgoa (oxoopt those 

5 pr e siding ovor Indian Probato Mattom) — auoigmd to the 

6 Western facilities of tho Ofl i co of Hearings mid Appeal ; * of 

7 the Department of tho Interior ulrnll remain with that Be 

8 partrnont at thoir pronont grado and position or they ;>hall 
have tho right to tranufcr on an equivalent baoi - j to that ex 

Id - tended in thin paragraph to tho Arlington, Virginia Admin 

1 i iotrativo Law Judgoo in accordance with prooodurca cstab 

1 2 li s hed by tlie Civil Service Commission. The Commission 

13 s hall appoint such additional admini '. trativo law judgcr . an 
1 [ it deems uccowary to carry out tho fuiiotionn of tho Com 
15 tiiiflgion. Alignment, removal, and compensation of adniinio 
1G trativc law judges ghull bo in accordance with ncctions i3105, 

17 0044, 5302, and 75131 of title 5, United State* Code. 

18 • ' (c) The Commission is authorized to dologato to any 

20 the Board, oxoopt that two lnonihoro r . hall oonotituto a (pio 

21 rum of any group designated pursuant to this paragraph . 

22 " (d) (1) An administrative law judge appointed by the 

23 Commission to hear niattorn undor thiu Act ahull hoar, and 

24 make a determination upon, any prooooding inutitutod before 

25 the Commission and any motion in connection there with, an 



323 



58 

1 oigncd to ouoh adminiotrativo law judgo by the ohiof adininio 

2 trativo law judgo of tho Commission or by tho Commission, 

3 and shall mako a decision which constitutor hio final disposi 

4 tion of tho prooccdinga. The decision of tho adminiotrativo law 

5 judgo of tho Commission shall booomo tho final dooioion of the 
q Commiooion thirty days alter its isuuanoo unless within such * 
7 poriod tho Commission has directed that such decision shall 
g be reviewed by tho Commission in accordance with para 
9 graph (2) of thio subsection. An administrative law judge 

10 shall not bo assigned to proparo a reoommended decision 

12 " (Q) The Commiggion shall prescribe rules of procedure 

13 for its review of the decisions of administrative law judges in 

14 oases undor this Act and which shall moot the following 

15 standards for review (tho provisions of section 557(b) — of 

16 t itle 5, United S tates Code, with jcgaid lu the review all- 

17 thority of the Commission aro horoby oxproor.ly suporsoded 

18 to tho e xtent that they are inconsistent with the provisions 

19 of paragraphs (A), (B), and (C) of thin subsection) ; 

20 "(A) Petitions for diqoretiokary review. — 

21 (i) Any party may filo and s e rv e a potition for die - 

22 crctionary roviow by tho Commission of a dooision of 

23 an administrative law judgo within thirty days after the 

24 issuance of such dooioion. Roviow by tho Commission 



324 



59 

1 obnll not bo a matter of right but of the couiij discretion 

2 of tbo Commiocion. 

3 " (ii) Petitions for discretionary review jlnill bo filed 

4 only upon on e or nioro of the following ground:'! 

5 " (I) A finding or conclusion of material fact io 

6 not supported by substantial evidence. 

7 " (II) A necessary legal conclusion in erroneous. 

8 " ( III) The decision ij contrary to law or to (he 

9 duly promulgated ruler , or docisiom - of the Com 

10 mission. 

11 "(IV) A ' 'uh ' Uimtial question of law, policy, or 

12 discretion is involved. 

13 " ( V) — A prejudicial error of proeoduro was 

\. VI1I1I1 I I ivu. 

*** "(iii) Each ipr . no shall be separately numbered and 

16 plainly and concisely stated, and nhall be oupported by 

detailed citation? to the record when oorignmentg of 

18 error are based on the record; and by statutes, regula 

19 tiong, or principal authorities relied upom Except for 
*® good cause shown, no assignment of e rror by any party 
^ 1 shall rely on any question of fact or law upon which 
^ t he adm i nistrative law judge had not been afforded an 

opportunity to pagg. Review by tho Commission shall 
be granted only by affirmative vote of two of the Com 



24 



325 



60 

1 missioner s present and votiiigi If grantod, roviow ahall 

2 bo limited t o tho questions raisod by tho potition. 

3 '(B) Review dy commission at its own initi 

4 'ATiVEi — At any timo within thirty dayo nftor the iaau 

5 anc e of a deci s ion of an administrative law judgo, tho 

6 Commiooion may in ito disorotion (by affirmative voto of 

7 two of the Commiogioncro present and voting) order the 

8 caso before it for revi e w but only upon tho ground that 

9 tho decision may bo contrary to law or Commiooion pol 

10 icy, or that a novel question of policy has boon proscntod. 

11 The Commi33ion oliall otato in such order the npocifio 

12 iaimc of law, Commission policy or novol question of 

13 polioy involved . If a party' s petition for discretionary 
!■* review haa been granted, tho Commiooion ohall not raise 
15 or coucidor additional is s ue s in such review proceedings 

except in compliance with thi s paragraph . 

17 "(C) Scope of neview. For the purpose of re - 

18 view by tho Commission under paragraph (A) or (B) 

19 of this subsection, tho record shall includo (i) all mat 

20 tei'3 constituting tho roeord upon which tho decision of 

21 the adminigtrativo law judgo was baood, (ii) tho ml 

22 ingo upon proposed findings and conclusions, (iii) tho 

23 decision of th e administrative law judge, (iv) the peti- 

24 tion or potitions for di s cretionary review, responses 

25 thereto, and th e Commission's order for review, and 



326 



61 

1 — (v) briofn filod on roviow. No othor matorial ohall bo 

2 oonridorod by the Commbifiion upon roviow. Tho ad 

3 ministrativo law judgo'o findingo Qiid oonoluoiono of fact, 

4 ao dintinguiohod from policy determination^ nhall not 

5 bo not anido by tho Comminnion unlonn nuoh findings or 
(> oonolur . ionn of fact are unnupportod by nubntant'ml ovi 
t donee of record. Tho Commission cither may remand 

8 tho onr.o to tho ndministrativo law judgo for furthor 

9 proooodingr , ac it may diroot or it may affirm, not anido, 
1° or modify tho decision or order of tho adminintrativc law 
11 judgo in oonfonnity with tho rooord. If tho Comminnion 
^2 dotorminon that further ovidenoo in neoonnary on an 
13 inouo of faot it nhall roninnd tho cane for further pro 
14" ooedingo before tho adminintrativo law judge. 

15 " (e) In connection with hearings before the Com mis - 

■*" oion, or itn administrative law judgoc, undor thin Act, the 

Commission and its administrative Inw judges may compel 

18 the attendanoo and testimony of witnossos and the production 

19 of booko, papers, or documonts or objoots, and to order tenti 
2 ^ mony to bo takon by doposition at any stago of tho proeood'nign 
21 before them. Any poroon may bo oompolled to appear and de 

pono and produco liko documentary or physical ovidonoo, in 
the same manner as witnesses may bo oompolled to appear 
and produce evidence before the Commission and ito adminin 
trativo law judg es. Witnesses Khali bo paid tho name feen and - 



327 



62 

1 mileage that arc paid witnesses in tho oourto of tho Unitod 

2 States and at depositions ordored by suoh oonrtei In caso of a 

3 oontumaoy, failuro, or refusal of any poroon to obey a sab 

4 pona or order of the Commis s ion or an admini s trative law 

5 judge, respectively, to appear, to testify > or to produoo doou - 

6 mcntaiy or physical evidence, any district court of th e 

7 United States or the United States oourto of any territory 

8 or possession, within tho jurisdiction of which ouch person io 

9 found, or resides, or transaots business, shall, upon the appli 

10 cation of tho Commission, or the administrative law judge, 

11 roopootivoly, have jurisdiction to issue to suoh person an or 

12 dor requiring such poison to appear, to tostify, or to produoo 

13 evidence as ordered by the Commission or the administrative 

14 law judge, respectively, and any failur e to obey such order 

15 of the court may be punished by said court as a cont e mpt 

16 thereof. — 

17 "AUTHORIZATION QF APPROPRIATIONS 

18 "Sec. 115. There are authoriz e d to be appreciated, 

19 out of any moneys in tho Treasury not otherwise appro 

20 priatcd, suoh sumo ao may bo necessary to carry out the 

21 provisions of this title. '\ 

22 MANDATORY OAFETY TRAINING 

23 "Seo. 110. (a) Each operator shall have a safe t y 

24 training program which shall bo approved by tho Secretary. 

25 The Soorotary shall promulgate regulations with respect to 



328 



63 

1 such safety training programs no moro than ono hundred 

2 and eighty days aftor tho ollootivo dato of tho Federal Mino 

3 Safety and Health Amendments Act of 1077. Each training 

4 program approved by tho S e cretary shall provide no Iopb than 

5 -#wrt 

q " ( 1 ) new miners ohall receive no leno than forty 

7 hours of training if they arc to work underground. 

S Such tra i n i ng s hall include use of the self rescue device 

9 and use of respiratory devices, — ha a ard recognition, 

10 oooapowayo, walk around training, omorgonoy prooo 

11 durcs, basic ventilat i on, basic roof control, electrical 

12 hasards, first aid, and the health and safety - aspects of 

13 tho task to which ho will bo aooignod ) 

14 " (2) new miners shall receive no lc33 than twenty - 

15 four hours of training if they arc to work on the sur - 
1G face. Such training shall include iisc of the self rescuer 

17 dovioo and use of respiratory dovio e sj hazard rooog 

18 nition, omorgonoy proooduroo, olootrioal hazards, first aid, 

19 walk around training and the health and safety aspects 

20 of the task to which he will be assigned ; 

21 " (3) — all miners shall receive no less than eigh t 

22 hours of refreshor training no loss frequently than once 

23 each twelve months, except that miners already cm- 

24 ployod on tho offootlvo date of tho Federal Mine Safety 

25 and Health Amendments Act of 1077 shall receiv e th i s 



329 



64 

1 rofrooher training no more than ninety days after the 

?. dato of approval of tho training plan required by this 

3 section ; 

4 "( 4 ) any miner who is reassigned to a new task 
r> filial 1 reooivo — training in accordance will) — a — training 
G plan approved by the Secretary under this subsection 

7 in the safety and health aspects specific to that (ask prior 

8 to performing thafe task. 

9 ■ " (b) — Any safety training provided under subsection 
10 - (a) of this section shall be provided during normal work - 

31 ing hours. Minors shall be paid at their normal rate of 

32 compensation while they take such 1 raining, and new miners 

13 shall be paid at their starting wage rate when they lake 

14 the new miner training. If such training shall be given at 
35 a location other than the normal place of work, miners 

16 shall also be compensated for the additional costs they may 

17 incur in attonding euoh training portions. 

18 " (o) Upon completion of each training program, each 

19 operator shall certify, . on a form approved by tho Soerotory, 

20 that the miner has received the specified training in each 

21 subject area of tho approved safety training plan. A oertifi - 

22 , catc for each minor shall bo maintainod by tho operator, and 

23 shall be available for inspection at the mine site, and a copy 

24 thereof shall bo givon to oaeh minor at the completion of such 

25 train i ng. When a minor loaves the operator's employ, he shall - 



330 



65 

1 bo ontitlod to a copy of his onfoty training certificates. False 

2 certification by an operator that training wag given shall be 

3 punishnblo under ocction 111 (n) and (h) of this Aet ; and 

4 oaoh onfoty training certificate shall indicate on its face, in 

5 bold lottorr . , printod in a conspicuous manner (he fact that 

6 Guoh faloo certification is 90 punishable. 

7 " (d) — Within one hundred and eighty days after the 

8 offootivo dato of the Foderal Mine Safety and Health Amend 

9 ments Act of 1077, the S ecretary s hall publi s h regulations 

10 which ohftll provide that mine rescue teams comprised of 

11 Federal mine inspectors shall be maintained at each district, 

12 subdistriot, and, where practicable, field office of the Mine 

13 S afety and Health Adm i n i stration.". 

14 AMENDMENT S WITH REBPEOT TO INTERIM MANDATORY 

15 IIEALTII OTANDARDQ 

16 Seo. 202. (n) (1) Sootion 201 (a) of the Federal Coal 
^ Min e Health and S afety Act of 1969 is am e nded by striking 

18 out "coal mines" and inserting in lieu thereof "mines, as 

19 applicable". 

20 (3) Section 201 (b) of such Act is amended by s triking 

21 out "ooal mino" and inoorting in lieu thereof "mine". 

22 (b) Scotion 205 of such Act is amended by striking 

23 out "ooal mining" and inserting in lieu thereof "mining". 

24 (o) Scotion 206 of such Act in amended by striking out 



331 



66 

1 "ooal mino" oaoh timo it appears ther e in and inserting in 

2 lieu thereof "mino". 

3 (d) (1) Section 202(c) of the Federal Coal Mino 

4 Health and Safety Act of 1060 is amended to road ao 

5 fAllAnTO • 

(5 "(o) References to concentrations of roopirablc dust in 

7 this titlo moano the average oonoontration of roopirablc duot 

3 moaourod with a dovico approved by the Secretary and tho 

9 Secretary of Health, Education and Welfare.". 

10 (2) Section 318 of tho Federal Coal Mino Health and 

11 Safoty Aot of 1060 is amended by striking subsection (k) 

12 thereof. 

13 AMENDMENTS WITH RESDEOT TO INTERIM MANDATORY 

14 SAFETY STANDARDS FOR UNDERGROUND OOAL MINES 

15 Sbo. 203. Title III of the Federal Coal Mine Health 

16 and Safety Aot of 1060 is amended by striking section 301 

17 - (c) and (d) thereof. 

18 TITLE III— MISCELLANEOUS PBOVIOIONS 

19 TRANSFER MATTERS 

20 Seo. 301. — (a) Except with respect to the functions 

21 assigned to the Socrotary of tho Intorior pursuant to oootion 

22 501 of the Federal Coal Mine Health and Safety Act of 

23 1009, the functions of the Secretary of the Interior under 

24 the Federal Coal Mino Health and Safety Act of 1060, an 

25 amended, and tho Fodoral Metallic and NonmetaHic Mino 

20-040 O - 78 - 22 



332 



67 

1 Safety Act of 1060 arc transferred to the Secretary of Labor, 

2 oxoopt those which arc oxproooly tramf erred to the 4 toinmia 

3 sion by this Act. 

4 (b) (1) — Tho mandatory standards relating to minoty 

5 issued by tho Secretary of the Interior under the Federal 

6 Motallio and Nonmctallic Mine S afety Act of 190C and 

7 standards and regulations under the Federal Coal Mine 

8 Hoalth and Safety Aot of 1960 which arc in effect on the 

9 date of enactment of this Aot shall remain in effect as 

10 standards applicable to motallio and nonmctallic - mines and 

11 to ooal mines resp e ctiv e ly und e r th e F e d e r a l Mine Safoty and 

12 Hoalth Aot of 1977 until suoh timo as tho Sooretary ghall 

13 ioouo now or rovisod standards! 

14 ( 8 ) Within s ixty days after the effective date of this 

15 Act, the S ecretary ahall ootablioh an advisory committee 

16 undor oootion 103 of th e F e d e ral Mino Safoty and Hoalth 

17 Aot of 1977 which shall, within on e hundr e d and eighty 

18 days after tho dato of tho establishment of ouch advisory 

19 committee, roviow th e advisory h e alth and safoty standards 

20 igguod by tho S e cretary of th e Interior und e r tho Federal 

21 Metallic and Nonm e tallic Min e Safety Act of 1966 and rco - 

22 ommend to tho Secr e tory which of those standards (or any 

23 modification of ouoh standards which does not substantially 

24 diminish the health and safety of miner s ) s hould bo pro - 

25 mulgatod as hoalth and safety standard s und e r this section. 



333 



68 

1 Tho Sccrotary Ghall publish, within sixty day s after any 

2 recommendations of tho advioory oommittoo undor this para 

3 graph, oaoh of the Gtandardg go recommended for adoption 

4 with or without modification a3 a health and safety standard 

5 undor this sootion by publication of such standard in the 

6 Federal Begister, and afford interested persons a period of 

7 twenty five days after publication to submit written data or 

8 commont. Within thirty daj^s after tho olooo of tho comment 

9 period specified in the preceding sentence, the Secretary shall 

10 promulgate b}r publication in the Fed'eral Begi s ter a s tandard 

11 based upon tho advisory committee rooommonded with or 

12 without modification, and tho data and comments received 

13 thereon, unless th e S e cr e tary det e rmines that such a standard 

14 will not promote the health and safety of miners and pub - 

15 lishos an explanation of that determination in tho Fodoral 

16 Begister. 

17 (3) All interpretations, regulations, and instructions of 

18 the Secretary of the Interior or the Director of the Bureau 

19 of Minos, in effect on tho dat e of enactm e nt of this Act and 

20 not inconsistent with any provision of this Aot or any 

21 -amendm e nt made by this Act, shall b e publish e d in tho Fod - 

22 cral Begister and shall continue in effect until modified or 

23 superseded in aooordanoo with tho provisions of this Aot. 

24 (c) (1 ) All unexpended balances of appropriations, per 

25 sonncl, property, roeords, obligations, and commitments 



334 



69 

1 which arc uncd primarily with respect to any function trans - 

2 forred under the provinionn of subsection (a) of this section 

3 to the Secretary shall ho transferred to tho Department of 

4 Labor or the Commission, an appropriate. The transfer of 

5 personnel pursuant N> thin paragraph shall be without reduc 

6 tion in classification or compensation for one year after such 

7 traielcr, except that tho Secretary of Labor shall have full 

8 authority to anngn personnel during s uch on e- year period in 

9 order to efficiently carry out functions transferred to him 

10 under thio Aot. 

11 (l 1 ) All orders, dco'i t uon ;- , determinations, rules, rcgula - 

12 lions, permits, contracts, certificates, licenses, and privileges 

13 -(^A) — which havo been issued, made, granted, or allowed 

14 to become effective in the exorcise of functions which arc 

15 - transferred und e r this s e ction by any dopartmont or agency, 

16 - <iny functions of which arc transferred by thia section, and 

17 (B) which arc in effect at the time this acotion takes effect, 

18 shall oont'muo in effect according to their terms until modi 

19 tied, terminated, sup e rsed e d, set aside, or repoalod by the 

20 Secretary of Labor, the Federal Mine Safety and Health 

21 Review Commission, by any court of competent jurisdiction, 

22 or by operation of law. 

23 (d) The provisions of thio section shall not affect any 

24 proceedings ponding at the time thi s s ection takos offect 

25 before any department or agency, functions of which arc 



335 



70 

1 transferred by this section ; except that such proc e edings, to 

2 tbo extent that thoy rolato to functions go transferred, ohall 

3 bo continued boforo tho Secretary of Labor or the Federal 

4 Mine Safety and Health Review Commission. Orders shall 

5 bo issu e d in such proceedings, appeals shall be taken there 

6 from, and payments shall bo mado pursuant to such orders, 

7 ao if thio section had not been enacted,' and ord e rs issued in 

8 any such proc ee dings shall continue in ofToct until modified, 

9 torminatod, suporoodod, or repealed by the Secretary of 

10 Labor, the Federal Mine Safety and Health Review Com 

11 mission, by a court of oompotont jurisdiction, or by oporation 

12 of law. 

13 (4) The provisions of this section shall not affect suits 

14 commenced prior to the date this section takes effect and in 
™ all ouch suits proceedings shall be had, appeals taken, and 
16 judgments rendered, in the ' same manner and effect as if 
™ this section had not boon enacted ; except that if before the 

18 date on which this s e ction takes effect, any department or 

19 agonoy (or offioor thoroof in his official capacity) is a party 

20 to a 3uit involving functions tran s ferred to th e Secretary, 

21 then such suit shall be continued by the Secretary of Labor. 

22 No cause of action, and no suit, action, or other proceeding, 

23 by or against any department or agency (or officer thereof 

24 in his official capacity) functions of which aro transferred 

25 by this section, shall aba to by reason of tho enactment of thin 



336 



71 

1 pofltioih CWo » - of actions, cuitr, actionr, or othor proceeding , - , 

2 mn) . - bo assorted by or against tho Unitod States or tlic S o cre - 

3 tary » > - , may ho appropriate and, in any litigation ponding 

4 when (hi t, section hiker olToct, (ho court may at any time, on 

5 iU own motion or that of any party, e nter an ordor which 

6 wi l l give olToct to th( > prov'n . ionn of thic paragraph. 

7 (d) For purpose * - , of thin action , (1) tho term "funo * 

8 tion" includes power and duty, and (2) tho transfer of a 

9 function, under any provision of law» of an ag e ncy or tho 

10 head of a department t. hall als . o 1)0 a tran i for of all funot w m i ; 

11 under nidi law which are exerci s ed hy any officer or ofli - 

1 2 w v of such agency or department . 

13 M1N10 PAKinV AND llKAl/TH ADMINISTRATION 

14 SEC; 302, (a) There i s established in the D e partment 
l f > of Labor, a Mine Safety and Health Administration to 

16 bo headed hy an A ss istant Secretar}r of Labor for Mine 

17 Safety and Health appointed by the President, by and with 

18 tho advic e and consent of the Senate . The Secretary is au - 

19 thoriaod and dir e cted, except as s pecifically provided other 

20 wise, to carry out his functions under the Federal Mine Safety 

21 and Health Am e ndments Act of 1077 through tho Mine 

22 Safety and Health Administration . 

23. (b) Section 5315 of title 5 , United States Codo, ir . 

24 am e nded by adding at the end — thereof the following 

2 5 paragraph ; 



337 



72 

1 "(109) Assistant Secr e tary of Labor for Mine 

2 Safety and Hoalth.", 

3 (o) (1) Section oldo of title 5, United States Codes is 

4 amondod by adding at tho end thereof tho following new 

5 paragraph : 

6 "(61) Chairman, Federal Mine Safety and Health 

7 Roviow Commission. "» 

8 (2) Section 5315 of title 5, United Statos Code, in 

9 amondod by adding at tho end thereof tho following now 

10 paragraph : 

11 " (109) Members, Fodoral Mino Safoty and Health 

12 Roviow Commission. "i 

13 (d) Tho principal offioo of tho Commission shall bo in 

14 tho Distriot of Columbia. Whonovor tho Commission dooms 

15 that tho convenience of tho public or of tho partios may bo 

16 promot e d^ or d e lay or expens e may bo minimiz e d, it may 

17 hold hoarings or conduct othor proceedings at any othor 

18 plaoo. 

19 AMENDMENTO WITH. REOPEOT TO MINE SAFETY AND 

20 HEALTH ADMINISTRATION 

21 Seo. 303. (a) (1) Sootion 501 (a) of the Federal Coal 

22 Mine Health and Safoty x\ot of 1969 is amondod by striking 

23 out tho word "coal" whorovor it appoars thorein, and by 

24 striking out "Tho Secretary and" and inserting in lieu thoreof 

25 "The Secretory of tho Intorior and" . 






73 

1 (2) Section 501 (a) of tho Federal Coal Mine Health 

2 and Safety Act of 1M9 i f. furtlior amended hy iiu . orting 

3 immediately after paragraph "(10)" thereof, tho following 

4 now paragraph: 

5 "(11) to, upon the written request hy any operator 
C or authorised representative of minora, upccifying with 

7 n » a ?i oimhle particularity the ground ;* upon which i nch 

8 request h; made determine whether any t uiWianoo nor - 

9 mal l y found in a m i ne ha t. potentially toxic otToclr . in the 

10 concentration ?, normally found in the mine or whether 

11 any phy s ical agent* or equipment found or lined in a 

12 mine ha - potentially haaardouu oiTootn, and ahall mihrnit 

13 > uoh determ i nation .; t - o hoth the operators and miiior t j 
l£ Q i C coon as pos s ible ;" and 

j-, hy renumbering the current paragraph "(11)" a » > "(12)'\ 

^ (o) S e ction 501 (h) of s uch Act i* amended by striking 

j 7 out the word "coal" each timo it appoaiv . therein and hy 

-j s adding after tho word "Welfare" the following: "through t he 

^ National Institute for Occupational Safety and Hoalth or . tab 

2q lir . hod under tho Occupational Safety and Health Act of 

91 1970" j and by striking out the period at the end theroof 

on and inserting "of the Interior in coordination with the 

23 Score tary". 

2rl: ( 1) Scotion 501 (d) of s uch Act is amended hy striking 

25 out tho word "coal"» 



339 



74 

1 (5) Section 501 of such Act is farther amended by add - 

2 ing at tho end thoroof tho following now sub se ction ; 

3 "(h) The S e cr e tary ghall compile ■ accurate statistic s on 

4 work injurios and illnossos occurring in tho minoo cubjcct to 

5 thio Act.". 

6 (b) Sootion 502 of such Act is am e nded by striking 

7 out tho word "coal" oach time it appears thoroin. 

8 (o) (1) Sootion 503(a) of such x\ot is amondod by 

9 striking out th e word "coal" oach tim e it appoars thoroin . 
10 (2) Sootion 503 (b) of suoh Act ie amondod by striking 
1J oat th e word "coal" eaofa tim e it appoars therein. 

12 (&) (1) Section 503(f) of such Act is amondod by 

13 striking out th e word "coal"* 

14 (2) Sootion 503 (g) of such Act is 4 traond«d by striking 

15 out the word "coal" . 

16 ( e ) (1) S e ction 505 of such Act k amondod by striking 

17 out "tho mining of coal" and inserting in lieu thoroof "in 

18 mining" . 

19 (2) Section 505 of s uch Act is further amondod by 

20 changing the period at the end of th e socond sontonc e thoroof 

21 to a colon, and adding tho following language: "Provided 

22 however, That, to 'the maximum extent feasible, in tho soloo 

23 tion of porsons for appointment as mino inspootore, no person 

24 shall be 60 selected unless he ha s the ba s ic qualification of at 

25 l e ast fivo y e ar s practical mining exp e rienc e and in a s signing 



340 



75 

1 mine inspectors to tho inspection and investig a t i on of indivicU 

2 ual minos» du e con s id e ration shall bo 'giv e n to the e xtent pos - 

3 oiblo to tiioir previous experience in tho particular typo of 

4 mining operation whore such innpootions are to bo mado." 

5 (f) S e ction 506(b) of such Act iw amendod by striking 
G out tho word ''ooal" each time it appoa-ru thoroin. 

7 (g) (1) Section 511(a) of mob Aot in amondod by 

S strik i ng out tho word ''co a l 1 ' . 

9 (3) Section oil (b) of t. noh Aot is am e nded by striking 

10 out the word "coal" . 

11 {h) Section 503 of tnioh Act is am e nd e d by adding th e 

12 following now pubsoction (c) ; 

13 ''(o) (1) The National Mine Health and Saf e ty Acad - 

14 omv r . hall bo maintained aw an ag e ncy of th e Department 

15 of tho Intcriori Tho Acad e my shall b e responsible for th e 

16 training of mine saf e ty and he a lth inspectors under s e ction 

17 505 of this Act, and in training of t e chnical support pcr - 

18 oonnol of tho jUino Safety and Ho a lth Administration octab 

19 liohod undor ooction 302 of tho Fodoral Mino Safety and 

20 Health x\mon ' dmonts Act of 1977 ; and for any othor train 

21 ing programc for mine inspectors, mining personnel, or othor 

22 porcone as tho Secretaries of L a bor and Interior chall dooig 

23 nato. In prrfr"™^ ih ™ f'"^ti™V the Annriomy chall have 

24 the at tbority to outer into cooperative educational and train 

25 4ft £ a g re omcntS w ith ^n nof ' nnftl i"g*it"<™"gj Stfitn gnvnrn 



341 



76 

1 montc. labor organizations, and mino op e ra tore and relatod 

2 induetriofi. Such training shall bo conduct e d by th e Acadomy 

3 in aooordanco vA '. h curriculum needs and assignment of 

4 instructional poroo i inol established by tho uoor. 

5 "(2) In porf? ruling its function pursuant to thin occ 
C tion, tho National 'M &\-> Health and Safety Academy shall 

7 use tho faoilitioo and pop^nnol of tho Department of tho In - 

8 torior, and such other porsonnol as shall bo mutually agrood 
upon by tho Soorotarios of Labor and Int e rior, Tho Socrotary 

10 of tho Interior* upon request by tho Acad e my » shall appoint 

11 or aooign to tho Acadomy such officer s and employees as the 

12 Director of th e Academy deems nece ss ary for the p e rform - 

13 aneo of tho duti e s and functions of the Academy. 

14 "(3) Tho Secr e tary of tho Interior s hall conduct his 

15 oafoty rosoarch responsibilities under s ection 501 of thi s A ct 
1G in coordination with the Secretary of Labor, and the Secre - 

17 fc arioo of Labor and the Interior are authorized to ontor into 

18 oontraotual or other agreements for the porformanco of ouch 

19 safety rolatod research/'* 

20 (i) Section 7 (b) (5) of tho Small Businooo Act ia 

21 amondod by striking out tho word "coal". 

22 SAVINGS PROVISION 

23 S bo. 801. Nothing oontained in this Act or any amond 

24 m0 nt mndo by this Act shall bo construod to roduoo the 

25 num bor of inspectors engaged in enforcement of tho Fod 



342 



77 

1 oral Coal Mine Health and Safety Act of 1060 and Fod 

2 oral Metallic and Nonmctallio Mine Safety Act of 1966 ao in 

3 ofloot prior to tho effective date of thio Act or to roduoo 

4 the numbor of inopootoro engaged in tho onforoomont of 

5 the Occupational Safoty and Hoaltb Act of 1970. 

6 BUDGET PROVISION 

7 Sec, 305i In tho pr e paration of tbo Budg e t moscago 

8 roquirod under oootion 301 of the Budget and Aooounting 

9 Act, 1001 (31 U.S.C. 11), tho Prooidont oball oot forth 

10 Q9 aeparatc appropriation acoounto amounts roquirod for 

11 appropriation for mino health and safoty pursuant to tbo 

12 Federal Mine H e alth and Safety Act of 1977 and for occu - 

13 pational oafoty and hoaltb pursuant to tho Occupational 

14 Safoty and Hoaltb Act of 1970> 

15 BEPBALBB 

16 Sec. 306. Tho F e d e ral M e tal and Nonmotallio Mino 

17 Safoty Act of 1966 is ropoalod. 

18 EFFECTIVE DATE 

19 S eo. 307. Thio Act and tho amondmonts mado by tbig 

20 Act ohnll tako offoct on the first day of July 1978 e xc ept 

21 that tbo Socrotary of Labor i s authorized to establish 

22 cuch rules and rPgnlntfoTw as may be necessary for tho offi - 

23 eiont transfor of functions provided undor this Act. 



343 



78 

1 That this Act may be cited as the "Federal Mine Safety and 

2 Health Amendments Act of 1977". 

3 TITLE 1— AMENDMENTS TO THE GENERAL 

4 PROVISIONS OF THE FEDERAL COAL MINE 

5 HEALTH AND SAFETY ACT OF 1969 

6 SHORT TITLE 

7 Sec. 101. The first section of the Federal Coal Mine 

8 Health and Safety Act of 1969 is amended to read as fol- 

9 lows: "That this Act may be cited as the 'Federal Mine 

10 Safety and Health Act of 1977' ". 

11 DEFINITIONS AND APPLICABILITY 

12 Sec. 102. (a) (1) Section 2 of the Federal Coal Mine 

13 Health and Safety Act of 1969 is amended by inserting "or 

14 other" immediately after "coal" wherever it appears. 

15 (2) Section 2(g) (1) of such Act is amended by striking 

16 out "the Interior" and inserting in lieu thereof "Labor". 

17 (b)(1) Section 3(a) of such Act is amended by strik- 

18 ing out "the Interior" and inserting in lieu thereof "Labor". 

19 (2) Section 3(h) of such Act is amended to read as 

20 follows: 

21 "(h) (1) 'coal or other mine' means (A) an area of 

22 land from which minerals are extracted in nonliquid 

23 form or, if in liquid form, are extracted with workers 

24 underground, (B) private ways and roads appurtenant 

25 to such t area, and (C) lands, excavations, underground 



344 



79 

1 passageways, shafts, slopes, tunnels and workings, struc- 

2 tures, facilities, equipment, machines, tools, or other prop- 

3 erty including impoundments, retention dams, and tail- 

4 ings ponds, on the surface or underground, used in, or 

5 to be used in, or resulting from, the work of extracting 

6 such minerals from their natural deposits in nonlvjuid 

7 form, or if in liquid form, with workers underground, or 

8 used in the milling of such minerals, or the work of 

9 preparing coal, and includes custom coal preparation 

10 facilities, except that with respect to protection against 

11 radiation hazards such term shall not include property 

12 used in the milling of source minerals defined in the 

13 Atomic Energy Act of 1954, as amended. In making a 

24 determination of what constitutes mineral milling for pur- 

25 poses of this Act the Secretary shall give due considera- 
2g tion to the convenience of administration resulting from 
yj the delegation to one Assistant Secretary of all authority 
2g with respect to the health and safety of miners employed 
jg at one physical establishment; 

20 "(2) For purposes of titles II, III, and IV, 'coal 

22 mine' means an area of land and all structures, facilities, 

22 machinery, tools, equipment, shafts, slopes, tunnels, ex- 

23 cavations, and other property, real or personal, placed 

24 upon, under, or above the surface of such land by any 

25 person, used in, or to be used in, or resulting from, the 



345 



80 

1 work of extracting in such area bituminous coal, lignite, 

2 or anthracite from its natural deposits in the earth by any 

3 means or method, and the work of preparing the coal so 

4 extracted, and includes custom coal preparation facili- 

5 ties;". 

6 (3) Sections 3 (d), (e), (g), and (j) of such Act are 

7 each amended by inserting "or other" immediately after 

8 "coal" wherever it appears. 

9 (4) Section 3 of such Act is amended by striking out the 

10 word "and" at the end of paragraph (I), by striking out the 

11 period at the end of paragraph (m) and inserting in lieu 

12 thereof " ; and" , and by adding at the end thereof the follow- 

13 ing new paragraph: 

4 a "(n) 'Administration' means the Mine Safety and 

j5 Health Administration in the Department of Labor." 

16 (c) Section 4 of such Act is amended by inserting "or 

Yi other" immediately after "coal" . 

18 TITLE II— MINE SAFETY AND HEALTH 

19 STANDARDS AMENDMENTS 

20 AMENDMENTS TO TITLE I 

2i Sec. 201. (a) Title I of the Federal Coal Mine Health 

22 and Safety Act of 1969 is amended by inserting "or other" 

23 immediately after "coal" wherever that term occurs. 

24 (°) Section 101(g) of such Act is amended by adding 

25 at the end thereof the following new paragraph : 



346 



81 

1 "The Secretary of Health, Education, and Welfare, as 

2 soon as possible after the date of enactment of the Federal 

3 Mine Safety and Health Amendments Act of 1977 but in 

4 no event later than three years after such date, and on a 

5 continuing basis thereafter, shall, for each toxic material or 

6 harmful physical agent which is used or found in a coal or 

7 other mine, determine whether such material or agent is 

8 potentially toxic at the concentrations in which it is used or 

9 found in a coal or other mine. The Secretary of Health, 

10 Education, and Welfare shall submit such determination to 

11 the Secretary, together with all pertinent criteria, and a pro- 

12 posed standard.". 

13 TITLE III— MISCELLANEOUS PROVISIONS 

14 TRANSFER MATTERS 

-j 5 Sec. 301. (a) Except with respect to the functions 

lg assigned to the Secretary of the Interior pursuant to section 

yj 501 of the Federal Coal Mine Health and Safety Act of 

1% 1969, the functions of the Secretary of the Interior under 

jg the Federal Coal Mine Health and Safety Act of 1969, as 

20 amended, and the Federal Metal and Nonmetallic Mine 

2i Safety Act are transferred to the Secretary of Labor. 

22 (b)(1) The mandatory standards relating to mines, 

23 issued by the Secretary of the Interior under the Federal 

24 Metal and Nonmetallic Mine Safety Act and standards and 

25 regulations under the Federal Coal iiine Health and Safety 



347 



82 

1 Act of 1969 which are in effect on the date of enactment of 

2 this Act shall remain in effect as standards applicable to 

3 metallic and nonmetallic mines and to coal mines respectively 

4 under the Federal Mine Safety and Health Act of 1977 

5 until such time as the Secretary shall issue new or revised 

6 standards applicable to metal and nonmetallic mines and 

7 new or revised standards applicable to coal mines. 

8 (2) Within sixty days after the effective date of this Act, 

9 the Secretary shall establish an advisory committee which 

10 shall, within one hundred and eighty days after the date 

11 of the establishment of such advisory committee, review 

12 the advisory health and safety standards issued by the 

13 Secretary of the Interior under the Federal Metal and Non- 

14 metallic Mine Safety Act and recommend to the Secretary 

15 which of those standards (or any modification of such stand- 

16 ards which does not substantially diminish the health and 

17 safety of miners) should be promulgated as health and safety 

18 standards under the Federal Mine Safety and Health Act 

19 of 1977. The Secretary shall publish, within sixty days after 
2Q any recommendations of the advisory committee under this 
2i paragraph, each of the standards so recommended for adop- 

22 tion with or without modification as a health and safety 

23 standard under such Act by publication of such standard 

24 in the Federal Register, and afford interested persons a 

25 period of twenty-five days after publication to submit written 

20-040 O - 78 - 23 



348 



83 

1 data or comment. Within thirty days after the close of the 

2 comment period specified in the preceding sentence, the Sec- 

3 retary shall promulgate by publication in the Federal Regis- 

4 ter a standard based upon the advisory committee recom- 

5 mended with or without modification, and the data and com- 

6 ments received thereon, unless the Secretary determines that 

7 such a standard will not promote the health and safety of 

8 miners and publishes an explanation of that determination 

9 in the Federal Register. 

10 (3) All interpretations, regulations, and instructions of 

11 the Secretary of the Interior or the Director of the Bureau 

12 of Mines, in effect on the date of enactment of this Act and 

13 not inconsistent with any provision of this Act or any 

14 amendment made by this Act, shall be published in the Fed- 

15 eral Register and shall continue in effect until modified or 
IQ superseded in accordance with the provisions of this Act. 

17 (c) (1) All unexpended balances of appropriations, per- 

18 sonnel, property, records, obligations, and commitments 

19 which are used primarily with respect to any function trans- 

20 f erred under the provisions of subsection (a) of this section 
2i to the Secretary shall be transferred to the Department of 

22 Labor. The transfer of personnel pursuant to this paragraph 

23 shall be without reduction in classification or compensation 

24 for one year after such transfer, except that the Secretary of 

25 Labor shall have full authority to assign personnel during 



349 



84 

1 such one-year period in order to efficiently carry out func- 

2 tions transferred to him under this Act. 

3 (2) All orders, decisions, determinations, rules, regula- 

4 tions, permits, contracts, certificates, licenses, and privileges 

5 (A) which have been issued, made, granted, or allowed 

6 to become effective in the exercise of functions which are 

7 transferred under this section by any department or agency, 

8 any functions of which are transferred by this section, and 

9 (B) which are in effect at the time this section takes effect, 

10 shall continue in effect according to their terms until modi- 

11 fied, terminated, superseded, set aside, or repealed by the 

12 Secretary of Labor, by any court of competent jurisdiction, 

13 or by operation of law. 

14 (3) The provisions of this section shall not affect any 

15 proceedings pending at the time this section takes effect 

16 before any department or agency, functions of which are 

17 transferred by this section; except that such proceedings, to 

18 the extent that they relate to functions so transferred, shall 

19 be continued before the Secretary of Labor. Orders shall 

20 be issued in such proceedings, appeals shall be taken there- 

21 from, and payments shall be made pursuant to such orders, 

22 as if this section had not been enacted; and orders issued in 

23 any such proceedings shall continue in effect until modified, 

24 terminated, superseded, or repealed by the Secretary of 



350 



85 

1 Labor, by a court of competent jurisdiction, or by operation 

2 of law. 

3 (4) The provisions of this section shall not affect suits 

4 commenced prior to the date this section takes effect and in 

5 all such suits proceedings shall be had, appeals taken, and 

6 judgments rendered, in the same manner and effect as if 

7 this section had not been enacted; except that if before the 

8 date on which this section takes effect, any department or 

9 agency (or officer thereof in his official capacity) is a party 

10 to a suit involving functions transferred to the Secretary, 

11 then such suit shall be continued by the Secretary of Labor. 

12 No cause of action, and no suit, action, or other proceeding, 

13 by or against any department or agency (or officer thereof 

14 in his official capacity) functions of which are transferred 

15 by this section, shall abate by reason of the enactment of this 

16 section. Causes of actions, suits, actions, or other proceedings 

17 may be asserted by or against the United States or the Secre- 

18 tary as may be appropriate and, in any litigation pending 

19 when this section takes effect, the court may at any time, on 

20 its own motion or that of any party, enter an order which 

21 will give effect to the provisions of this paragraph. 

22 (d) For purposes of this section, (1) the term "func- 

23 tion" includes power and duty, and (2) the transfer of a 

24 function, under any provision of law, of an agency or the 



351 



1 head of a department shall also be a transfer of all functions 

2 under such law which are exercised by any officer or officer 

3 of such agency or department. 

4 MINE SAFETY AND HEALTH ADMINISTRATION 

5 Sec. 302. (a) There is established in the Department 

6 of Labor a Mine Safety and Health Administration to 

7 be headed by an Assistant Secretary of Labor for Mine 

8 Safety and Health appointed by the President, by and with 

9 the advice and consent of the Senate. The Secretary is au- 

10 thorized and directed, except as specifically provided other- 

11 wise, to carry out his functions under the Federal Mine 

12 Safety and Health Act of 1977 through the Mine Safety and 

13 Health Administration. 

14 (b) Section 5315 of title 5, United States Code, is 

15 amended by adding at the end thereof the following 
lg paragraph : 

17 "(114) Assistant Secretary of Labor for Mine 

18 Safety and Health". 

19 amendments with respect to mine safety and 

20 health administration 

2i Sec. 303. (a)(1) Section 501(a) of the Federal Coal 

22 Mine Health and Safety Act of 1969 is amended by inserting 

23 "or other" immediately after "coal" wherever it appears 

24 therein, and by striking out "The Secretary and" and insert- 

25 ing in lieu thereof "The Secretary of the Interior and" . 



352 



87 

1 (2) Section 501(b) of such Act is amended by inserting 

2 "or other 1 immediately after "coal" each time it appears 

3 therein and by inserting after "Welfare* the following: 

4 "through the National Institute for Occupational Safety and 

5 Health established under the Occupational Safety and Health 

6 Act of 1970" ; and by striking out the period at the end thereof 

7 and inserting in lieu thereof "of the Interior in coordination 

8 with the Secretory" . 

9 (3) Section 501(d) of such Act it amended by insert- 

10 ing "or other' immediately after "coal". 

11 (b) Section 502 of such Act is amended by inserting "or 

12 other" immediately after "coal" each time it appears therein. 

13 (c)(1) Section 503(a) of such Act is amended by 

14 inserting "or other" immediately after "coaV y each time it 

15 apf>ears therein. 

1(? (2) Section 503(b) of such Act is amended by insert- 

17 ing "or other" immediately after "coaT each time it appears 

18 therein. 

19 (d)(1) Section 503(f) of such Act is amended by 

20 inserting "or other" immediately after "coal" . 

2i (2) Section 503(g) of such Act is amended by inserting 

22 "or other" immediately after "coal" . 

23 (c)(1) Section 505 of such Act is amended by striking 

24 out "the mining pf coal" and inserting in lieu thereof "in 

25 mining". 



353 



88 

1 (2) Section 505 of such Act is further amended by 

2 striking out the period at the end of the second sentence thereof 

3 and inserting in lieu thereof ": Provided, however, That, to 

4 the maximum extent feasible, in the selection of persons for 

5 appointment as mine inspectors, no person shall be so selected 

6 unless he has the basic qualification of at least five years prac- 

7 tical mining experience and in assigning mine inspectors to 

8 the inspection and investigation of individual mines, due 

9 consideration shall be given to the extent possible to their 

10 previous experience in the particular type of mining opera- 

11 tion where such inspections are to be made." 

12 (f) Section 506(b) of such Act is amended by inserting 

13 "or other" immediately after "coal" each time it appears 

14 therein. 

15 (q)(1) Section 511(a) of such Act is amended by 

16 inserting "or other" immediately after "coal". 

17 (2) Section 511 (b) of such Act is amended by inserting 

18 "or other" immediately after "coal". 

19 (h) Section 502 of such Act is amended by adding at 

20 the end thereof the following new subsection (c) : 

21 "( c )(l) The National Mine Health and Safety Acad- 

22 em?/ shall be maintained as an agency of the Department 

23 of the Interior. The Academy shall be responsible for the 

24 training of mine safety and health inspectors under section 

25 505 of this Act, and in training of technical support per- 



354 



89 

1 sonnet of the Mine Safety and Health Administration estab- 

2 lished under section 302 of the Federal Mine Safety and 

3 Health Amendments Act of 1977 ; and for any other train- 

4 ing programs for mine inspectors, mining personnel, or other 

5 persons as the Secretaries of Labor and Interior shall desig- 

6 nate. In performing this function, the Academy shall have 

7 the authority to enter into cooperative educational and train- 

8 ing agreements with educational institutions, State govern- 

9 ments, labor organizations, and mine operators and related 

10 industries. Such training shall be conducted by the Academy 

11 in accordance with curriculum needs and assignment of 

12 instructional personnel established by the user. 

13 "(2) In performing its function pursuant to this sec- 

14 Hon, the National Mine Health amd Safety Academy shall 

15 use the facilities and personnel of the Department of the In- 

16 terior, and such other personnel as shall be mutually agreed 

17 upon by the Secretaries of Labor and Interior. The Secretary 

18 of the Interior, upon request by the Academy, shall appoint 

19 or assign to the Academy such officers and employees as the 

20 Director of the Academy deems necessary for the perform- 
2i ance of the duties and functions of the Academy. 

22 "(3) The Secretary of the Interior shall conduct his 

23 safety research responsibilities under section 501 of this Act 

24 in coordination with the Secretary of Labor, and the Secre- 

25 taries of Labor and the Interior are authorized to enter into 



355 



90 

1 contractual or other agreements for the performance of such 

2 safety related research! 1 . 

3 SAVINGS PROVISION 

4 Sec. 304. Nothing contained in this Act or any amend- 

5 ment made by this Act shall be construed to reduce the 

6 number of inspectors engaged in enforcement of the Fed- 

7 eral Coal Mine Health and Safety Act of 1969 and the Fed- 

8 eral Metal and Nonmetallic Mine Safety Act as in effect prior 

9 to the effective date of this Act or to reduce the number of 

10 inspectors engaged in the enforcement of the Occupational 

11 Safety and Health Act of 1970. 

12 BUDGET PROVISION 

13 Sec. 305. In the preparation of the Budget message 

14 required under section 201 of the Budget and Accounting 

15 Act, 1921 (31 U.S.C. 11), the President shall set forth 

16 as separate appropriation accounts amounts required for 

17 appropriation for mine health and safety pursuant to the 

18 Federal Mine Health and Safety Act of 1977 and for occu- 
lt pational safety and health pursuant to the Occupational 

20 Safety and Health Act of 1970. 

21 REPEALER 

22 Sec. 306. The Federal Metal and Nonmetallic Mine 

23 Safety Act is repealed. 



356 



91 

1 EFFECTIVE DATE 

2 Sec. 307. This Act and the amendments made by this 

3 Act shall take effect 90 days after the date of the enactment 

4 of this Act except that the Secretary of Labor is authorized to 

5 establish such rules and regulations as may be necessary for 

6 the efficient transfer of functions provided under this Act. 



357 



95th Congress ) HOUSE OF KEPEESENTATIVES ( Report 

1st Session \ \ No. 95-312 



FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 



May 13, 1977.— Committed to the Committee of the Whole House on the State 
of the Union and ordered to be printed. 



Mr. Perkins, from the Committee on Education and Labor, 
submitted the following 

REPORT 

together with 
MINORITY VIEWS 

Including cost estimates of the Congressional Budget Office 

[To accompany H.R. 4287] 

The Committee on Education and Labor to whom was referred the 
bill (H.R. 4287) to promote safety and health in the mining industry, 
to prevent recurring disasters in the mining industry, and for other 
purposes, having considered the same, report favorably thereon with 
an amendment and recommend that the bill as amended do pass. 

The amendment strikes out all after the enacting clause of the bill 
and inserts a new text which appears in italic type in the reported bill. 

Purpose 

Never before have the Nation's 11,790 metal and nonmetal mines 
and mills and their 274,540 workers been brought together with the 
5,452 coal mines and cleaning plants and their 211,871 employees 
under one legislative canopy. Yet the juncture is both natural and 
beneficial, especially to metal and nonmetal miners who have suffered 
in relative silence through nearly 100 catastrophies since the turn of 
the century, in which 5 or more miners were killed in a single accident. 

Mining represents a small segment of the working population, yet 
the operation is of a nature that is so unique, so complex, and so haz- 
ardous as to not fit neatly under the Occupational Safety and Health 
Act. A. miner's chances of getting killed on the job are more than 
eight times as great as those of a laborer in manufacturing, according 
to the National Safety Council. Increased emphasis by this country on 



358 



coal and mineral production to meet the demand for energy, con- 
structed facilities and manufactured goods, will cause new mines to 
appear and existing mines to be more thoroughly exploited. Studies 
have shown that accelerated emphasis on production lends to push lip 
both fatality and injury rates among the miners. 

The Education and Labor Committee has reported out the ''Federal 
Mine Safety and Health Amendments Act of 1977" in hopes of coun- 
tering this tendency and lowering the existing injury and fatality 
rates among all miners. This bill will rename the Federal Coal Mine 
1 [ealth and Safety Act of 1060 as the Federal Mine Safety and Health 
Act of 1077 and amend it to bring metal and nonmetal miners under 
its jurisdiction. The Metal and Non-Metallic Mine Safety Act of 10(H) 
would be repealed. The Secretary responsible for the health and sa tVty 
of miners will no longer be the Secretary of the Interior, but rather 
the Secretary of Labor, who represents an agency that puts the wel- 
fare of workers above all other considerations. The committee believes 
that by transferring administration of the miner health and safety 
program, and by upgrading legislative provisions applicable to metal 
and nonmetal miners through consolidation of all miners under one 
safety law. the Nation will be better able to meet the dual objectives 
of increased production of mineral and energy resources, and protec- 
tion of the sacred lives of those members of our society who toil in the 
mines to keep our country running efficiently. 

Background 

On March 3, 1891, Congress passed "An Act for the protection of the 
lives of miners in the Territories" (51st Congress, Chapter 564). This 
was the first Federal legislation governing safety standards and in- 
spection practices in the Nation's coal mines. 

The act required the President to appoint a mine inspector to make 
a careful and thorough inspection of each coal mine operated in the 
territory and report at least annually to the Secretary of the Interior 
on the condition of each such coal mine. Specifications regarding ven- 
tilation shafts, machinery, and safety equipment for miners were 
among subjects covered by the standards contained in the act. The law 
provided for right of entry of the inspector, and it provided for a 
mandatory penalty "not to exceed 500 dollars'' for "any mine owner 
or manager who shall continue to operate a mine after failure to 
comply with the requirements of this act and after the expiration of 
the period named in the notice provided for in section four." 

The first Federal law to protect the safety and health of non-coal 
miners was not passed for another 75 years. By that time there were 
nearly twice as many metal and nonmetal as coal miners, and nearly 
three times as many metal and nonmetal mines as coal mines. 

It is not known how the number of metal and nonmetal mining fa- 
talities compared with those among coal miners in the first half of this 
century, because the Department of the Interior did not require all 
metal and nonmetal mine operators to report fatalities until 1958. 
However, since 1958 a total of 3.269 metal and nonmetal miners have 
been killed on the job, compared with 4.471 fatalities among coal 



359 



miners. In 1975, according to the National Safety Council, the death 
rate for all mining was more than four times as great as the average 
for all industries. These statistics suggest that the two sectors of the 
mining industry, which the National Safety Council ranks as the most 
hazardous of the eight major industry groupings, should merit similar 
amounts of congressional attention and concern. 

Yet, over the years metal and nonmetal mining has not received at- 
tention equal to that imparted to coal mining. Even at present, the 
Federal Metal and Nonmetallic Mine Safety Act affords considerably 
less protection to the miners it covers than the Federal Coal Mine 
Health and Safety Act of 1969 does for coal miners. In addition, metal 
and nonmetal mine safety standards promulgated are typically more 
general and appear to be less stringently enforced than coal mine 
•standards, because metal and nonmetal mining has traditionally, 
though inaccurately, been considered less hazardous than coal mining. 

A number of reasons explain why coal miners received protective 
Federal health and safety legislation long before non-coal miners. 

First, while coal mining produces essentially one commodity, non- 
coal mining produces about 70 separate minerals. The major ones are 
copper, gold-silver, iron, lead-zinc, and uranium for the metals; and 
clay, gypsum, phosphate rock, potash, and salt for the non-metals. Be- 
cause of the homogeneous nature of the product, coal miners have 
more rapidly united into a cohesive lobbying force than have non-coal 
miners. 

Second, statistics distort the hazardonsness of underground and even 
surface metal and non-metal mining operations, as compared with the 
coal industry, because of differing proportions of works in the various 
sectors of the respective mining industries. Metal and nonmetal min- 
ing has 15 percent of its miners in underground mines, 50 percent in 
surface mines, and 35 percent in post-mining milling operations. Coal 
mining, on the other hand, has 65 percent of its workforce in under- 
ground mines, 25 percent in surface mines, and 10 percent in non-min- 
ing activities, including work in independent shops and mechanical 
cleaning plants. There are no major milling-type operations connected 
with coal mining. 

Because of these differing proportions of workers, although the fa- 
tality rate for underground metal and nonmetal miners in 0.54 fatali- 
ties per million man-hours worked — significantly above 0.37 fatalities 
per million man-hours worked for underground coal miners, the in- 
dustry fatality rate for metal -and nonmetal mining is only 0.25 fatali- 
ties oer million man-hours worked, considerably lower than the 0.37 
fatalities per million man-hours worked for the entire coal industry. 
However, the rates published and disseminated are generally the 
whole industry rates. Therefore, the mass of milling operations, pecu- 
liar to the metal and nonmetal industry, and not mining operations^! 
the true sense of the word, has tended to obscure the real dangers in- 
herent in metal and nonmetal mining. 

Third, disasters in metal and nonmetal mines are varied and diverse, 
both in the type of mine that attack and in the way the disasters mani- 
fest themselves. Metal and nonmetal tragedies ran occur in ore mines, 
copper mines, salt mines, or rock quarries in such forms as floods, fires. 



360 



explosions, or roof falls. However, when mass fatalities strike in the 
coal indntry. the words "coal mine" and "explosion" leap out again 
and again, ringing nationally with repetitive force and cumulative 
impact, thereby spurring congressional action. 

For example, in 1940, 257 coal miners died in four separate methane 
gas explosions. This provided the impetus needed to enact Federal 
legislation which had been pending for several years. In 1941, Con- 
gress quickly passed the Coal Mine Health and Safety Act. En 
December, 1951, 11 J) coal miners died in another explosion of 'naturally- 
occurring methane gas in a coal mine in West Frankfort, 111. The fol- 
lowing year Congress amended and strengthened the 1941 act. Again, 
in \ovember of 1968 still another methane gas explosion in a coal mine 
in Farmington, W. Va., killed 78 men. Within a year. Congress passed 
the new Federal Coal Mine Health and Safety Act of 1969. 

In contrast, comprehensive metal and nonmetal mining health and 
safety legislation did not result from or follow soon after any one such 
large-scale disaster, although in 1910 an explosion of a powder maga- 
zine in the Alaska-Mexican gold mine in Treadwell, Alaska, claimed 
&7 lives. In 1917 a mine fire in the Granite Mountain copper mine in 
Butte. Mont., took 163 lives. In 1922, a mine fire of unknown origin in 
the Argonaut gold mine in Jackson. Calif., killed 47 workers. In 1924. 
an inrush of water into the Mil ford manganiferous iron ore mine in 
Crosby. Minn., took the lives of 41 workers. In 1926 a mine flood in 
the Barnes Hecker iron mine in Ishpeming, Mich., claimed 51 lives. 
And in 1942 a limestone quarrv blast in the Sandts Eddv quarry in 
Allentown, Pa. killed 31. 

Largely responsible for the enactment of the Metal and Nonmetallic 
Mine Safety Act in 1966, rather, were the results of a study made by 
n special Mine Safety Board appointed by the Secretary of the Interior 
as required under Public Law 87-300, passed by Congress in 1961 in 
the wake of mounting evidence of a continuing high rate of serious 
injuries and deaths in the Nation's metal and nonmetal mines. 

The 18-month survey, conducted between 1961 and 1963. indicated 
the widespread existence of correctable hazards to life and health in 
mines, a high casualty rate suffered by working miners from dangerous 
conditions beyond their own control, and the ineffectiveness of State 
and local efforts to reduce mine health and safety hazards. More 
specificallv. the House report of the bill that became the Metal and 
Nonmetallic Mine Safety Act states with regard to the completed 
study : * 

On the basis of this analysis, 50.7 percent of the fatal 
injuries were classified as resulting "from circumstances over 
which the workmen had no control, but which were within 
the scope and range of supervisory responsibility." That is : 
approximately half of the 270 men killed were classified as 
victims of inadequate supervision, failure to provide safety 
devices, defective equipment, collapses of roof which super- 
visors permitted to be unsupported, inadequate ventilation, 
and other hazardous environmental conditions reasonably 
within the power of management to prevent. 



1 U.S. Consrcss. Housp of Representatives Report No. 89-60G "Federal Metal and Non- 
metallic Mine Safety Act", July 8, 1965, p. 4. 



361 



Need for a law with strong enforcement provisions was supported 
by evidence produced in the follow-up portion of the study : 1 

Reinspection of these mines indicates a somewhat lax 
attitude on the part of many mine operators toward hazards 
that had been called to their attention. More than 700 mines 
were inspected a second time during the course of the study. 
Only about half of the thousands of hazards revealed on 
initial inspection, and recommended for elimination in written 
reports given by the Bureau of Mine inspectors to the mine 
operators, were found to have been corrected in the interim. 

Introduction 

The Federal Metal and Nonmetallic Mine Safety Act which resulted 
was hailed as landmark legislation in that it provided the first Federal 
health and safety protection for non-coal miners. However, the weak- 
nesses of the 1966 act were soon to become apparent. In the eyes of 
many miners' organizations the major problem from which others 
sprang was that responsibility for metal and nonmetal mining health 
and safety was given to an Assistant Secretary within the Bureau of 
Mines who had other responsibilities for production of the various 
minerals and fuels. As time passed, these groups felt that the conflict- 
ing demands being put on the Assistant Secretary for increased 
mineral production on one hand, and increased health and safety 
protection for miners on the other, were being resolved at the expense 
of the miners. 

These feelings were reinforced as more disasters struck. In 1968, 
there was fire in the Cargill salt mine in Belle Isle, La. Twenty miners 
died of carbon monoxide poisoning. One more succumbed to a massive 
skull fracture. There were no survivors on that shift. Neither the 
cause of the fire nor the point of origin was ever determined. A com- 
plete mine inspection had never been made by officials from the 
Bureau of Mines prior to the fire, although partial inspections had 
resulted in recommendations for safety improvement, but little correc- 
tive action. Fire-fighting equipment was lacking and mine rescue 
teams were not maintained by any of the salt mining companies in 
the area. 

Three years later, in 1971, seven miners died in succession in the 
Barnett Complex, an underground fluorspar-lead-zinc operation in 
Rosiclare, 111., as the result of exposure to naturally-occurring hy- 
drogen sulfide gas. The gas collects where organic matter decomposes 
in confined spaces, and can dissolve in nearby underground water 
reservoirs. The fumes are released from the water as it pours out of 
drill holes during mining operations to locate an ore vein. The fatali- 
ties occurred because one miner, although reportedly warned by an- 
other miner, wandered into a gassy area where a replacement fan had 
just been installed but not turned on to clear out the poisonous air. 
When the first miner failed to come back, his brother went to look 
for him. When neither man returned, others followed in search until 
seven men were fatally overcome by the chemical vapors. 

1 Ibid., p. 4. 



362 



G 



But it was the 1972 Sunshine silver mine fire where carbon monoxide 
inhalation snuffed out the lives of 91 miners in Kellogg, Idaho, that 
spurred the Department of the Interior response to the weaknesses 
inherent in the administrative setup of the safety and health program 
for metal and nonmetal miners. 

Smoke from the smoldering fire fed by scrap timber previously 
used for ground support was detected around 11 :40 A.M. on May 2 
while the principal operating officials of the Sunshine Mining Co. 
were 45 miles away attending their annual stockholders' meeting. In 
their absence, no designated individual was in charge of the entire 
operation. 

The Bureau of Mines' final report of the Sunshine Mine disaster 
lists nine major factors contributing to its severity, including delay 
of evacuation while company personnel searched for the fire, failure 
of the company officials to train their miners in self-rescue and survival 
techniques, or to conduct evacuation drills, and a ventilation system 
in the mine which contaminated the main intake airways with smoke 
and carbon monoxide after the fire had begun. 

Subsequently, in 1973, under heavy criticism for not having promul- 
gated and enforced sufficient life-saving standards to protect metal 
and nonmetal miners from these and other disasters, the Department 
of the Interior pulled mining safety and health enforcement officials 
from the Bureau of Mines and established them as a distinct entity 
called the Mining Enforcement and Safety Administration (MESA) 
in a separate building apart from other Department of the Interior 
and Bureau of Mines structures. MESA, however, was retained as the 
responsibility of the same Assistant Secretary of the Interior who had 
previously overseen the safety and health enforcement operation. 

Since the establishment of MESA as an independent organization 
within the Department of Interior, there have been no new metal and 
nonmetal mining disasters in which five or more miners were killed 
at one time. In 1975 and 1976, particularly, the nonfatal disabling 
injury and fatality rates for metal and nonmetal mines have shown 
a distinct drop over previous years. 

A serious problem remains, however, when one views the safety 
record for metal and nonmetal mining relative to that for coal mining. 
For the 10-year period since the Metal and Nonmetallic Mine Safety 
Act was passed, 1967 through 1976, the overall fatality rate for metal 
and nonmetal miners, including those in underground mines, surface 
mines (including open pit and sand and gravel mines, and stone 
quarries) and mills, averaged slightly over half that for coal miners, 
who work in underground mines, surface mines, and mechanical 
cleaning plants. However, for the most recent 5-year period, 1972 
through 1976, the average fatality rate for all metal and nonmetal 
miners has jumped to more than 75 percent of that for all coal miners. 

More alarming is the fact that in three areas the rates for casualties 
among metal and nonmetal miners are surpassing those for their coun- 
terparts in coal mining. For 5 years straight, 1972 through 1976, the 
mining population has exceeded that for the underground coal mining 



363 



sector. In 1972, 1973, and 1974, the fatality rate for surface metal and 
nonmetal miners has exceeded that for surface coal miners. In 2 out 
of the last 3 years, 1974 and 1975, the nonfatal disabling injury rates 
for underground metal and nonmetal miners have exceeded those for 
underground coal miners. These statistics are displayed on the chart 
below. 

FATALITY AND INJURY FREQUENCY RATES IN METAL AND NONMETAL, AND COAL 
UNDERGROUND AND SURFACE MINES, 1967-76 





Metal and nonmetal mines 




Coal mines 






Number 
employed 


Iniury frequency rates per 
million man-hours 


Number 
employed 


Iniury frequency rates per 
million man-hours 


Year and type of mine 


Fatal 


Nonfatal 
disabling 


Fatal 


Nonfatal 
disabling 


1967: 

Underground 

Surface 

1968: 

Underground 

Surface 

1969: 

Underground 

Surface 

1970: 

Underground __ 

Surface 

1971: 

Underground 

Surface 

1972: 

Underground 

Surface 

1973: 

Underground 

Surface 

1974: 

Underground 

Surface 

1975: 

Underground 

Surface 

1976: 

Underground 

Surface 


37, 771 
117, 074 


0.86 
.33 


41.28 
18.48 


103, 993 
24,699 


1.05 
.52 


47.57 
23.07 


34, 386 
114,415 


1.02 
.35 


41.00 
18.93 


98, 831 
25, 071 


1.63 
.65 


46.99 
24.97 


33, 568 
114,415 


.87 
.37 


42.16 
18.49 


97, 395 
25, 872 


.95 

.64 


48.77 
22.22 


34, 014 
113, 388 


.80 
.31 


46.03 
20.06 


102, 379 
31, 726 


1.20 
.58 


51.79 
25.60 


32, 524 
113, 000 


.80 
.30 


48.01 
19.73 


97, 740 
33,781 


.86 
.41 


56.40 
26.81 


0) 

34, 733 
127, 776 


2.10 
.39 

.74 
.44 


43.31 
18.57 

44.76 
16.29 


109, 396 
35,696 

100, 843 
30, 708 


.68 
.38 

.56 
.28 


55.32 
24.95 

48.80 
21.14 


38, 253 
142, 709 


.68 
.37 


44.41 
16.57 


113, 169 
44,743 


.51 
.35 


34.95 
16.85 


42, 085 
146, 103 


.56 
.26 


37.90 
15.17 


137, 060 
58, 170 


.47 
.36 


37.13 
17.86 


40, 012 
134, 013 


.54 
.26 


33.33 
12.04 


135, 977 
55, 491 


.37 
.29 


45.31 
19.01 



1 Comparable data not available. 

While much attention is quite rightly focused upon the harsh safety 
statistics in mining, little attention has been directed at the dangerous 
health conditions existing in many noncoal mines. In testimony before 
the committee, NIOSH declared : 

Metal miners extract about 50 commodities including cop- 
per, mercury, gold, silver, lead, zinc, uranium, and asbestos. 
These miners are exposed to perhaps an additional 50 poten- 
tially toxic substances and harmful physical agents during 
mining processes. Adequate information does not exist on the 
levels at which most of these substances are present in mines. 
As a group, workers in metal mines and mills are also ex- 
posed to an even wider range of pneumoconioses-producing 
dusts than are coal miners. They are also exposed to a number 
of carcinogens, including asbestos, arsenic, uranium and 
beryllium. 



20-040 O - 78 - 24 



364 

8 
History 09 TT.R. 4287 and O.mmiitkk 1 )kliberatiox 

The passage of H.R. 4-287 in Um 05th Congress is an attempt to bring 
about changes which will reduce metal and nonmetal mining fatalities 
and injuries — both in absolute term- and in relation to those occurring 
in the coal mining industry. 

It collects a major deficiency of H.R. 13555 which passed the House 
in the 04th Congress on July 28, L976. H.R. 13555 upgraded the pro- 
visions of the Metal and Xonmetallic Mine Safety Act and transferred 
responsibility for the health and safety of the Nation's coal, as well 
as metal and nonmetal, miners from the Department of the Interior 
to the Department of Labor. 

The deficiency of II. K. i:>. that it sustained the tradition of 

separate legislative authorities for metal and nonmetal mine health 
and safety on one hand, and coal mine health and safety on the other. 
In doing this, it failed to meet the long-standing need for equalizing 
health and safety protection for all miners. 

ILK. 42£7 would correct this weakness. Id passing it, the committee 
concluded that separate i- not equal in providing distinct legislation 
for metal and nonmetal miners apart from that protecting the health 
and safety of coal miners. 

Mr. Frank McKee, treasurer-elect of the United Steelworkers of 
America, emphasized the need ingle mine safety and health law: 

There is absolutely no reason why miners in one segment 
of the mining industry should be given different statutory 
rights than miners in another segment of the industry. 

Industry opposition to a single law has always been voiced 
in terms of the need for flexibility due to differences in coal 
and noncoal mining. However, to the extent that there really 
is the need for such flexibility, it applies only to the specific 
occupational safety and health standards. But there is no 
need for variation in the actual procedure for developing 
standards, nor in the enforcement methods, nor in the worker 
rights. Those procedures and those rights can be, and should 
be applied uniformly throughout the mining industry. 

The standards themselves do vary according to applicability 
and need among the different mining sectors. Even now, sepa- 
rate vertical standards are applied to the different types of 
mining covered by the single Metal and Nonmetallic Act (i.e., 
underground, surface, and sand and gravel). It is important 
to emphasize that H.R. 4287 does not legislate standards, 
nor would it cause coal standards to be applied to noncoal 
mines — or vice versa. The bill would, however, establish uni- 
form procedures for developing those standards and for en- 
forcing them, and that is exactly as it should be in order to 
provide all miners equal protection under the law. 

Interior Secretary Cecil D. Andrus affirmed this need for legisla- 
tive unification in his testimony on H.R. 4287 before the Compensa- 
tion, Health and Safety Subcommittee on April 1, 1977, when he said : 

There are a number of essential elements in the bill that 
must not be compromised including. . . . one statute for both 



365 



9 



coal and metal and nonmetal mines, affording equal protec- 
tion for all miners and a common regulatory program for all 
operators. 

H.E. 4287 is stronger than H.R. 13555 in other ways as well. It pro- 
vides for mandatory penalties to accompany citations issued for health 
and safety violations. H.R. 13555 provided only for permissive dollar 
penalties. The committee believes that mandatory penalties will pro- 
vide a greater incentive for mine operators to achieve initial com- 
pliance with standards promulgated. In adopting the same mandatory 
penalty formula of the Coal Act, the committee recognizes no differ- 
ence between a violation of a standard in a coal mine and a noncoal 
mine. By replacing the discretionary penalties of H.R. 13555 with 
mandatory penalties, H.R. 4287 eliminates the uncertainty and uneven 
imposition of penalties. The inducement to compliance is more press- 
ing and the operator will be less inclined to take the chance of not 
being penalized. The mandatory penalty system provides a greater 
degree of predictability of enforcement reaction if a violation does 
occur. 

H.R. 4287 as passed by the committee is limited version of a more 
comprehensive bill, co-authored by Chairman Gaydos of the Compen- 
sation, Health and Safety Subcommittee which has official jurisdiction 
over mine health and safety, and Chairman Dent of the Labor Stand- 
ards Subcommittee, to which was temporarily ceded jurisdiction over 
coal mine health and safety in 1968. The original Gavdos-Dent version 
of H.R. 4287 would have amended a number of provisions of the Fed- 
eral Coal Mine Health and Safety Act of 1969 as well as unified metal 
and nonmetal and coal mining health and safety under a single legis- 
lative umbrella. 

As passed in its amended form, H.R. 4287 does three essential 
things. First, it provides the same protection to metal and nonmetal 
miners as is afforded coal miners under the 1969 Coal Act. 

Second, it transfers all functions of the Secretary of the Interior 
under the Federal Coal Mine Health and Safety Act of 1969 to the 
Secretary of Labor. 

Third, it repeals the Federal Metal and Nonmetallic Mine Safety 
Act. 

After holding hearings on the original Gaydos-Dent bill, H.R. 4287, 
the committee voted out the limited version of the bill as described 
above. The limited version, which the committee adopted, pertained 
primarily to deleting basic reforms of the provisions of the 1969 Coal 
Act. The committee felt, however, that consolidation of the mine safe- 
ty laws and transfer of the Mining Enforcement and Safety Adminis- 
tration from the Department of the Interior was a big step. The per- 
sonnel who have been administering these laws for a number of years 
are now going to be under new supervision which will place greater 
emphasis on developing more specific standards and stringently en- 
forcing them in order to solve the challenge of reducing the fatalities 
and injuries, especially in metal and nonmetal mines. The committee 
believes that careful application of the provisions of the Coal Act to 
metal and nonmetal mines will accomplish the objective efficiently. 
However, it should be noted that the Coal Act provisions pertaining 
to specific workplace safety and health standards for coal mines are 



366 



10 



not made applicable to noncoal mines. The new act distinguishes be- 
tween statutory provisions which empower the Labor Department 
with enforcement authority to protect all miners, and statutory stand- 
ards, which the Congress enacted in 1969 to correct specific workplace 
conditions in coal mines. It is only the statutory provisions of the Coal 
Act wmich are made applicable to all mines, and not the statutory 
standards. In addition, promulgated standards, which evolved through 
the rule-making process of the Coal Act and the Metal and Non- 
metallic Act, and which apply to specific workplace conditions, re- 
spectively, in coal and noncoal mines are not made universally applica- 
ble to all mines. Promulgated standards will retain the same scope 
of coverage as they did before the passage of this bill. 

The committee, in deliberating over the provisions of the 1969 Coal 
Act, did determine that those provisions should be made applicable to 
all miners. The committee, during its hearing sessions in the Com- 
pensation, Health and Safety and Labor Standards Subcommittees 
did review the effectiveness of the rule-making procedure, inspection 
function, penalty system, judicial review prerogatives, and the con- 
tested citation procedure. Many of these provisions remained un- 
touched in IT. R. -1l >v 7 as introduced. However, since Labor 
Standards Subcommittee has announced a desire to continue oversight 
hearings on the improvements in the 1909 Coal Act, as advocated by 
the original U.K. 4287 bill, the committee decided that at least the level 
of statutory protection already achieved by the 1969 Coal Act should 
bo reaffirmed pending additional oversight healings regarding the effi- 
cacy of the changes. The details of the bill which the committee re- 
ported out did, therefore, undergo substantial hearing, with many 
witnesses, including the Administration, advocating further strength- 
ening. The committee, however, made a practical decision to suspend 
decision on the need for reform until the Labor Standards Subcommit- 
tee completes its review. Nevertheless, because of the concern with 
manifold health hazards experienced by the nation's miners, the com- 
mittee did accept one substantive amendment to the 19G9 Coal Act, 
whereby XIOSH is directed to prepare a toxic substance list of items 
found in the mines and to develop the necessary criteria documents and 
standards to be promulgated under the rule-making procedure of the 
act. 

Diseases and Health Hazards Connected vYith Metal and 
Xonmetal Mining 

The primary disease afflicting coal miners is coal miners' pneumo- 
coniosis or "black lung'' as it is commonly called. Tt is a chronic chest 
disease caused by the accumulation of fine coal dust particles in the 
lung. It can lead to severe disability and premature death. The Federal 
Coal Mine Health and Safety Act of 1969 provides for compensation 
of coal miners disabled by it, and for benefits to be paid to survivors 
of miners who die from it. 

Metal and nonmetal miners have never been compensated for their 
diseases in the same way. In fact, no comprehensive, all-inclusive 
study has ever been made of the diseases that affect metal and non- 
metal miners. Nor does there exist a complete listing of the toxic sub- 






367 



11 






stances found in metal and nonmetal mines. Yet some of the diseases 
and afflictions from which metal and nonmetal miners suffer have 
names and have been documented. 

Silicosis is one of several metal and nonmetal mining diseases that 
are vaguely similar to coal miners' pneumoconiosis. Almost all mines 
contain varying proportions of a number of minerals deposited to- 
gether. Silica rock, frequently in the form of quartz, or silicon dioxide, 
is contained to some degree in most mines. 

Silicosis occurs when crystalline silica dust is inhaled and retained 
in the lungs, causing scar tissue to form. The inelastic scars force the 
lungs to work harder to provide an adequate air supply. They also 
block the transfer of oxygen to the blood. The first symptoms of 
silicosis are shortness of breath and coughing. The disease may show 
up on chest X-rays as a shadow on the lungs. Silica dust is much more 
toxic than coal dust in that considerably less silica, when inhaled, will 
cause silicosis than the amount of coal dust which must be inhaled 
before pneumoconiosis occurs. However, once silicosis is contracted, 
the symptoms, progression, and final outcome are similar to the pattern 
followed with pneumoconiosis. 

The real danger with silicosis may be with surface mines more than 
with underground mines, because great amounts of water are used in 
connection with underground mining to lower the concentrations of 
airborne dust. Similar care is not taken in connection with surface 
mines. It is not known exactly how many miners suffer from silicosis. 
However, a 1958-60 study conducted jointly by the Public Health 
Service and the Bureau of Mines indicated that 3.4 percent of under- 
ground miners examined had X-ray evidence of silicosis. The rate 
may be higher among surface miners. 

Asbestosis is somewhat similar to silicosis. Asbestos fibers which 
are inhaled cause scar tissue to build up in the lungs to the point 
where the miner loses lung function. The death certificates of miners 
suffering from asbestosis generally do not list the disease as the pri- 
mary cause of death. Rather, death frequently occurs from heart 
attack, for asbestosis places additional strain on the heart, which 
must work harder to pump oxygen through the body because of the 
impaired lung function. Asbestos fibers are commonly found in talc 
mines, vermiculite mines, and in some quarries, as well as in at least 
one large taconite mine and one underground gold mine. Altogether, 
asbestosis probably exists in several thousand mining operations which 
are currently being screened by MESxl to determine the presence and 
concentration of asbestos fibers. 

Cancer is also a threat to asbestos workers. The inhalataion of 
asbestos fibers can cause lung cancer many years after exposure has 
condition shows up on X-ray films and obscures the pictures, 
surrounding the lungs. The prevalence of asbestosis or either of these 
two kinds of cancers among miners and former miners is not known. 

Siderosis is a benign disease of the lungs which results from the 
inhalation of iron oxide. This syndrome generally exists among iron 
miners and millers, and welders Involved in manymining and milling 
operations which call for welding rods containing iron. Siderosis is 
not known to cause or be connected with any other disease. However, 



368 



12 

it sometimes masks and is contused with other illnesses because the 
condition shows upon X-ray films and obscures the pictures. 

Lung cancer is associated with exposure to naturally-occurring 
radon daughters in uranium mines and mills. Radon is a gas created 
in the decay of uranium. Radon diffuses from the rock into the mine 
or mill air. attaches to airborne dust particles, and is inhaled into 
die lungs where it causes the cancer. MESA records indicate that BO 
to 40 former uranium miners arc contracting lung cancer each year 
from their occupational exposure. Host of them die from the disease. 

Mercury poisoning can occur in milling operations where ore is 
liquified and then vaporized and condensed to process it for com- 
mercial use. When it vaporizes, mercury gives off poisonous fumes 
which may then be inhaled. Symptomatic of mercury poisoning are 
central nervous system disorders characterized by "the sha 
equilibrium problems, and loss of memory and incoherence in its 
advanced stag 

Manganese poisoning occurs among welders who are repairing 
rotary crusher drums used in the milling process. Manganese vapors 
are frequently emitted from both the welding rod and the heated 
welding material used to build up the crushing drum. Manganese 
poisoning is extremely serious and can cause permanent and irreversi- 
ble central nervous system damage characterized by loss of voluntary 
muscle control. 

Nitric oxide and nitrogen dioxide poisoning result, respectively, 
from the inhalation of two toxic oxides of nitrogen. These chemical 
configurations result from dynamite explosions and are also found 
in diesel exhaust. Nitric oxide, when inhaled, attaches to the hemo- 
globin in the blood and inhibits oxygen carriage. The symptoms of 
nitric oxide poisoning are similar to those connected with carbon 
monoxide poisonng — headache, a feeling of dullness in the brain, etc. 
Once the miner is removed from the source of the contamination, the 
nitric oxide will leave the blood and is thought not to inflict permanent 
damage. 

Exposure to nitrogen dioxide is much more serious. A miner can 
be exposed to nitrogen dioxide and generally not feel particularly ill 
at first. The gas, however, causes fluid to collect in the lungs, simulat- 
ing pneumonia, and death may result within 24 to 48 hours after 
exposure. 

Dermatitis is a big problem among miners. A lot of cases result from 
the practice of spraying cement on the surfaces of underground mines 
to make "rooms'' or to stabilize the ground. Water used in the mining 
process collects cement dust. As miners walk through the puddles, 
the water and cement dust mixture may seep into their boots. Or, the 
water containing the cement dust may drip on them. The alkaline 
material in the cement causes a reaction with the skin. Salt dust from 
salt mines can also create dermatitis. Dermatitis generally does not 
result in time lost from w T ork, and symptoms can be relieved by the 
use of salves. 

Hearing loss is probably the most common condition among metal 
and nonmetal miners. MESA estimates that perhaps 25 percent of 
currently employed miners have a hearing impairment. The basic 



369 



13 



source of noise is drilling: machinery, fans, diesel engines, and grind- 
ing and crushing equipment. Noise is one of the more difficult areas to 
control in mining without reverting to ear plugs. 

"Beat disease" is a common name for a syndrome resulting from the 
use of jackhammers and other hand-held vibrating machines, and 
from driving heavy equipment over rough terrain. The constant vibra- 
tion affects the nerves, muscles, and bone structure. Eventually it 
leaves permanent effects, and results in impaired movement and limb- 
functioning, in addition to causing bursitis and other joint disorders. 

Heat stress results from working in mines which are hot either 
because they are located in thermal areas — especially in Utah and 
Wyoming, around mud pots, hot springs, etc. — or because the mines 
are located deep in the ground. In southern parts of the United States, 
including mines in Arizona and Florida, workers in surface mines 
may suffer from heat stress in the summer. 

Hydrogen sulfide poisoning results from inhalation of the naturally 
occurring gas found in the mining and chemical processing of ores. 
Exposure to the fumes can be fatal, as has been indicated in the pre- 
vious discussion of the seven fatalities in the Barnett Complex Mine 
in Rosiclare. 111. In small doses the gas irritates the eyes and causes 
"tightness" in the chest. 

Carbon monoxide poisoning is a threat wherever combustion occurs. 
Carbon monoxide gas is contained in diesel exhaust and is emitted 
from burning or smoldering mine fires. It was responsible for most 
of the deaths in the two mine fires previously discussed — those in the 
Cargill Salt Mine in Belle Isle, La., and the Sunshine Silver Mine in 
Kellogg, Idaho. 

Summary of Major Provisions 

As mentioned previously, H.R. 4287 does three essential things: 

First, it defines "mine" and adds "or other" after the word "coal" 
in most places where it appears in the Federal Coal Mine Health and 
Safety Act of 1969, thereby serving to bring metal and nonmetal min- 
ing and milling under the jurisdiction of the Coal Act. 

Second, it repeals the Metal and Nonmetallic Mine Safety Act 
passed in 1966. 

Third, it transfers the functions of the Secretary of the Interior 
under the Federal Coal Mine Health and Safety Act of 1969 to the 
Secretary of Labor. In addition, all personnel, property, records, etc., 
within MESA are transferred to the Department of Labor, and pro- 
ceedings before the Secretary of the Interior shall continue before the 
Secretary of Labor. 

Within the Department of Labor ,the previous MESA organization 
from the Department of the Interior shall be placed in the Mine 
Safety and Health Administration, headed by an Assistant Secretary 
of Labor for Mine Safety and Health, who shall carry out the Secre- 
tary of Labor's functions. This transfer has been strongly supported 
by President Carter in an effort to consolidate all major health and 
safety programs in the Department of Labor, which has traditionally 
been responsible for the welfare of the Nation's workforce. 

Other major provisions of H.R. 4287, in addition to those already 
in the Coal Act, are as follows : 



370 



14 



- tion 301(b) maintains the body of standards applicable to l>oth 
coal and metal and nonmetal mines, respectively, until the Secretary 

shall d Standards. A> the result of an amendment 

offer* Ep nan Quie and a- in full committee, all fu- 

ture standards -hall l>e promulgated separately or vertically as being 
appl I and non-ioal min< 1 ■ ively. However, identical 

Lards mav be appropriate for ea V if the same hazard 

the formal promulgation of the identical stand- 
ard- MJk BepanteJy. Old standards under the Metal and 
1 Ad are of two types: mandatory, which are enforceable; 
rv. which are merely gnggestionfl for safe operation of min- 
ing a<-tiviti< 

1 (b). then, requires that within 00 days after the effect ive 

of this act, the Secretary shall eflrahliah an advisory committee 

h shall, within 1^0 days' after ttfl establish: \ iew the ad- 

ealth and safety standai I ed by the 8 try of In- 

: - under the and Nonmc'tallic Mine Safety A<t 

and recommend tot Sea tary which of these shall be published as 
mandatory health and safety standai 

Through procedures outlined in the I ted standards shall 

be promulgated within 115 days, broken down as follows: The Sec- 
retary has GO days to publish recommended Standards in the Federal 
Interested persons shall then have 20 days to submit written 
or comment. Finally, within 80 days after the close of the com- 
ment j>eriod. the Secretary shall promulgate the final standards by 
publication in the Federal Register. If he determines that a particular 
recommended standard will not promote the health and safety of 
miners, and thereby not to promulgate such a standard, he 

shall publish an explanation of hi- n in the Federal Register. 

Section :^04 protects the existing mine inspection force as a basis 
for stronger enforcement of standards in metal and nonmetal mines. 
It does this by providing that nothing in this Act shall be construed 
to reduce the number of inspectors engaged in enforcement of the 
Federal Coal Mine Health and Safety Act of 1969, the Federal Metal 
and Xonmetallic Mine Safety Act, or the Occupational Safety and 
Health Act of 1970, as in effect prior to the effective date of this act. 

Section 305 guards against the amalgamation of the Mine Safety 
and Health Administration with OSHA, by requiring that the Presi- 
dent shall set forth, as separate appropriation accounts, amounts re- 
quired for appropriation for mine health and safety pursuant to the 
Federal Mine Health and Safety Act of 1977, and for occupational 
safety and health pursuant to the Occupational Safety and Health 
Act of 1970. 

Summary of Considerations Regarding Transfer of 
Administration 

Most considerations involved in the transfer of mining safety and 
health enforcement from the Department of the Interior to the De- 
partment of Labor are discussed more fully in connection with other 
matters elsewhere in this report. The transfer provision is not new to 
the 95th Congress, but was incorporated into H.R. 13555 passed by the 
House in the 94th Congress. Below are a summary and review oi" the 
major issues connected with transfer. 



371 



15 



CONFLICT OF MISSIONS 

Inherent conflicts of interest were established with the enactment 
of the Federal Metal and Nonmetallic Mine Safety Act passed m _1966 
and the Federal Coal Mine Health and Safety Act of 1969 With those 
laws, the Department of the Interior was given guardianship over the 
lives and welfare of the men who were carrying out the primary pur- 
pose of the Department— that of finding efficient ways of meeting the 
ever-increasing need and demand in this country for production oi 
scarce energy and mineral resources. 

The Department has at times admitted its own difficulty in acknowl- 
edging the priority that should be given health and safety matters. 
After taking much blame for not issuing and enforcing standards 
that would have prevented the tragic loss of 91 miners in the Sunshine 
Silver Mine fire in Kellogg, Idaho in 1972, Interior established MESA 
as an independent administration for the sole purpose of protecting 
miner health and safety. To a certain extent, however, the division 
was illusory, because the responsibility remained under the same 
Assistant Secretary who has responsibility for other production-ori- 
ented matters relating to energy conservation, energy and mineral re- 
sources, and oil and gas activities. The committee is convinced that 
only removal of health and safety responsibilities from Interior can 
really solve the problem. 

MESA'S POOR RECORD IN DEVELOPING METAL AND NONMETAL HEALTH AND 

SAFETY STANDARDS 

Regulations applicable to metal and nonmetal mining consist of a 
pool of standards, some mandatory and enforceable ; others advisory 
and unenforceable. Many of the mandatory standards contain vague 
and undefined language. Only a handful of health standards exist, 
hardly scratching the surface of the list of toxic substances to which 
miners are exposed. The committee is convinced that transfer of ad- 
ministration together with the standards provisions contained in the 
act will increase the speed of promulgation and quality of health and 
safety standards issued. 

TRUST OF THE LABOR DEPARTMENT; MISTRUST OF INTERIOR BY WORKERS 

The Department of Labor has been the traditional agency entrusted 
with responsibility for overseeing the welfare of the Nation's work- 
force. Miners, however, have viewed themslves as being in the dis- 
advantageous position of falling outside the jurisdiction of the Labor 
Department. Workers in milling operations exposed to both MESA 
and OSHA enforcement programs state a definite preference for 
OSHA enforcement as providing greater protection of their health 
and safety. Other union representatives have accused the Department 
of the Interior of siding with mine operators and following a lax en- 
forcement policy. Mine operators add fuel to the workers' assertions 
by testifying about their good working relationships with MESA in- 
spectors, and arguing vehemently against transfer. The crux of the 
issue as far as miners are concerned is that they regard the Depart- 
ment of Labor with considerably more credibility than they do the De- 
partment of the Interior. 



372 



16 

RESEARCH 

In previous years the Interior Department's main complaint against 
transfer was that important safety research, which could be most 
efficiently carried out in conjunction with production research, would 
be pulled from that agency. The committee solved this problem by 
maintaining safety research within the Department of the Interior, 
and leaving it unaffected by the transfer. However, the committee bill 
requires that such research shall be conducted in coordination with the 
Secretary of Labor, since MESA has in the past complained that In- 
terior research was not oriented enough to the enforcement responsi- 
bilities of the agency. 

OSHA-MESA OVERLAP 

Although most of the overlap between MESA and OSHA with re- 
gard to dual inspection of milling operations has been alleviated by a 
memorandum of understanding between the two organizations, placing 
both administrations within the same government agency would solve 
the remaining problems. A provision in II.R. 4287 guards against 
further jurisdictional conflicts by providing that the Secretary shall 
give due consideration to the convenience of administration resulting 
from the delegation in one Assistant Secretary of all authority with 
respect to health and safety of miners employed at one physical estab- 
lishment. 

WEAKNESSES OF THE METAL AND NoNMETAL ACT AND IMPROVEMENTS 

Made by H.R. 4287 

HEALTH HAZARDS PROTECTION 

The fact that the word "health" is not in the title of the Federal 
Metal and Nonmetallic Mine Safety Act is indicative of the lack of 
emphasis on health protection in that law. Furthermore, the act con- 
tains no provisions specifically tailored or relating to the development 
of health standards. Finally, the law contains no provisions for carry- 
ing out health research projects. 

Nevertheless, under the authority of the Occupational Safety and 
Health Act, and the research provisions in the Metal and Nonmetal 
Act implied in the authority to develop standards, NIOSH has con- 
ducted studies on toxic substances in metal and nonmetal mines and has 
developed criteria documents and recommended standards for sub- 
stances found in mines including noise, asbestos, silica, beryllium, in- 
organic arsenic, inorganic mercury, carbon monoxide, and nitrogen 
oxides. In many cases NIOSH has conducted its OSHA studies on the 
effects of these intoxicants, in the mines themselves, where heavy con- 
centrations of the contaminants occur naturally. 

MESA has adopted relatively complete standards, recommending 
handling and control equipment and prescribing monitoring proced- 
ures, however, for only three substances, asbestos, noise, and radon 
daughters. Moreover, the metal and nonmetal standard for asbestos is 
not as stringent as the OSHA standard for asbestos exposure. .However, 
among coal miners, where asbestos is generally found not in mining 
but only in the form of asbestos blankets to protect welders working 



373 



17 

in the mines, the strict OSHA standard has been adopted. The com- 
mittee believes that this neglect of the health and metal and nonmetal 
miners by MESA is extremely unfortunate in view of the hazards pre- 
sented by this disease-causing and cancer-causing mineral. 

Likewise, the radon daughters gas standard controlling exposure of 
uranium miners was not developed by MESA itself. Despite whole- 
sale disclosure of massive exposure of these miners, MESA officials 
did not take the leadership in developing and promulgating such 
standard. Rather, it was developed and promulgated by the Depart- 
ment of Labor under its Walsh-Healy authority. 

Otherwise, standards applicable to metal and nonmetal mines do not 
exist in complete form, but are limited to a single number representing 
the maximum atmospheric concentration to which miners may be 
legally exposed. These numbers are contained in a listing published by 
the American Conference of Governmental Industrial Hygienists. 

The Federal Mine Safety and Health Act of 1977 provides that mine 
health research shall be carried out by the Secretary of Health, Ed- 
ucation, and Welfare (HEW), and that mine safety research shall be 
carried out by the Secretary of the Interior. As a result of the Bu- 
chanan amendment, adopted by the full committee, NIOSH is directed 
to develop and publish, within three years after enactment, a list of 
all substances found in mines which are toxic at the concentrations in 
which they normally occur. 

It is the further intention of the committee that NIOSH place its 
research emphasis on lung and respiratory diseases among metal and 
nonmetal miners and on cancers and other illnesses suffered in higher 
concentrations by metal and nonmetal miners than by other members 
of the population. 

Lender the new act, as previously indicated in this report, the Sec- 
retary of HEW will be authorized, in addition to conducting research, 
to develop full proposed standards for toxic substances found in mines., 
to hold hearings on them, and to direct the Secretary of Labor to pro- 
mulgate the final standard. The committee intends that this procedure 
be used vigorously to develop a complete and comprehensive body of 
health standards to protect metal and nonmetal miners. 

STANDARDS 

Under the Metal and Nonmetal Act there are two types of health 
and safety standards: mandatory which are enforceable, and advis- 
ory, behind which there is no Federal enforcement authority. 

Further, under the Metal and Nonmetal Act, promulgation is ex- 
tremely slow because there are no time limits set in the promulgation 
process, other than the 30 days' time limit for interested persons to 
submit data or comments on the proposed standards published in the 
Federal Register. There is no time limit governing when the Secre- 
tary must hold a hearing on the proposed standard other than "as soon 
as practicable" ; and there is no limit on how long the Secretary may 
take, after the hearings are held on the proposal, to promulgate the 
final standard. Twenty-two months passed after the 1972 Sunshine 
Mine Fire which killed 91 miners before MESA finally promulgated 
a standard requiring that miners be provided with self-rescuer 



374 



18 

breathing apparatuses, despite the desperate need revealed by the 
disaster. 

H.R. 4*287 virtually mandates considerable upgrading of standard.-. 
It provides that tlm Secretary shall establish an advisory committee 
which shall have 180 days to review the advisory health standards iii 
metal and nonmetal mining and recommend as (mandatory) stand- 
ards or modifications thereof, any standards which do not substan- 
tially diminish the health and Bafety of miners. Alter the committee 
makes its recommendations, the Secretary shall have 00 days to pub- 
lish the proposal in the Federal Register. Interested persons shall 
have 25 days to respond with written data or comment. The Secre- 
tary then has an additional 30 days to promulgate the new standards 
by publication in the Federal Register. Where he determines that a 
proposed standard will not promote health and safety of miners, and 
therefore decides not to publish it, the Secretary shall publish an 
explanation of such determination in the Federal Register. 

Otherwise, all metal and nonmetal and coal standards shall remain 
in effect, applicable to the coal and metal and nonmetal mines, re- 
spectively, until the Secn-tary issues new or revised standards in 
accordance with the regular promulgation procedure. This procedure 
differs from the procedure under the Metal and Nonmetal Act in that 
the Secretary must promulgate the standards within 60 days fater the 
hearing is held. No time limit exists under the Metal and Xonmetal 
Act. 

The chronology of events in the promulgation of a health or safety 
standard under the Federal Mine Safety and Health Act of 1977 is 
as follows : 

The Secretary of HEW develops and revises proposed health stand- 
ards. The Secretary of Labor then publishes in the Federal Register 
the proposed health standards transmitted to him by the Secretary 
of HEW, and the proposed safety standards developed in the Mine 
Safety and Health Administration. Interested persons shall be 
afforded at least 30 days to submit written data or comments and re- 
quest a hearing. As soon as practicable after the end of the 30-day 
period for filing objections, the Secretary shall publish a notice in the 
Federal Register specifying the proposed standards to which objec- 
tions have been filed and a hearing requested. Promptly after this 
notice is published, the Secretary of HEW shall issue notice of and 
hold a public hearing to receive relevant evidence on health standards, 
or the Secretary of Labor shall issue notice of and hold a public hear- 
ing to receive relevant evidence on safety standards. Within 60 days 
after the completion of the hearings, the Secretary who held the hear- 
ing shall make public his findings of fact. The Secretary of HEW 
shall then direct the Secretary of Labor to promulgate health stand- 
ards with such modifications as he deems appropriate, or the Secre- 
tary shall promulgate, directly safety standards with such modifica- 
tions as he deems appropriate. 

If the Secretary of HEW or the Secretary, respectively, determines 
that a proposed health or safety standard should not be promulgated 
or should be modified, he shall within a reasonable time publish his 
reasons for that determination. 






375 



19 

Under the Metal and Nonmetal Act there is no provision for a vari- 
ance from a standard to be granted to mine operators. Under the 
Federal Mine Safety and Health Act of 1977. the Secretary may 
modify the application of a standard to a mine if an alternative 
standard will guarantee no less protection for miners, or not result 
in the dimunition of safety to the miners. 

ENFORCEMENT 

Under the Metal and Nonmetal Act underground mines are re- 
quired to be inspected at least once a year. Although MESA has 
recently undertaken an administrative policy of conducting four in- 
spections a year in all underground mines, this provision becomes 
law with the enactment of H.R. 4287. Moreover, the law will also 
require "frequent" inspections of all other mines and mills each year. 
Under the Metal and Nonmetal Act no mention is made of how 
frequently these last two operations must be inspected. The commit- 
tee stresses quality of inspection as well as quantity of inspection. 

The committee emphasizes the extreme need for health inspections 
as well as safety inspections. H.R. 4287 provides that the National 
Mine Health and Safety Academy shall be maintained as an agency 
in the Department of the Interior, and shall be responsible for train- 
ing mine safety and health inspectors and technical support person- 
nel of the Mine Safety and Health Administration. The committee 
intends that the Secretary of the Interior shall closely coordinate the 
efforts of the National Mine Health and Safety Academy with the 
Director of NIOSH, in training mine health inspectors in the recog- 
nition of health hazards in mines and in the use of measuring devices 
to record concentrations of toxic substances in mines. 

The Metal and Nonmetal Act provides that in case of violation of 
a health or safety standard, a notice shall be issued stating a reason- 
able time within which the violation shall be totally abated. H.R. 
4278 upgrades this provision by requiring that citations for violations 
of standards shall be in writing, shall describe the violation with par- 
ticularity, and shall set a reasonable time for abatement. De minimus 
notices shall be issued instead of citations where the violation has no 
substantial or direct impact on safety or health. 

The Metal and Nonmetal Act sets no time limits for mine opera- 
tors to appeal notices to the Secretary. Sections 105 of the amended 
act provides that an operator must apply to the Secretary for review 
within 30 days of receiving a notice of violation. 

PENALTIES 

Under the Metal and Nonmetal Act, no mandatory dollar penalities 
are issued in conjunction with notices of violations of standards. 
Failure to comply with a withdrawal order or failure to comply with 
an abatement order, however, is punishable, upon conviction,, by a 
fine of $100 to $3,000 or by imprisonment for not more than 60 days> 
or both, if the failure to comply could cause death or serious physical 
harm. 



376 



20 



The problems resulting from this system were noted by Mr. Thomas 
Miechur, President of United Cement, Lime, and Gypsum Workers' 
International Union in his testimony before the committee on March 21, 
1977, when he remarked on the increase in quantity of inspections to 
four per year for underground mines as a result of MESA's new 
administrative policy. 

We have found that quantity does not make quality. We 
have eeen hazards for which notices were issued remain un- 
corrected many, many months after the date for abatement 
has expired. We have seen that the lack of civil penalties 
makes effective enforcement difficult. 

ILK. 4287 corrects this deficiency by providing for the following 

mandatory penalties for mine operators. The amounts indicated below 
are maximum penalties. 

(1) $10,000 for violation of a safety or health standard or 
provision of this act; 

(2) $25,000 or imprisonment for not more than a year, or both, 
for willfully violating a provision of this act or health or safety 
standard ; $50,000 or imprisonment for not more than 5 years or 
both for any conviction after the first conviction ; 

(3) $10,000 or imprisonment for not more than 6 months or 
both for making a false statement or certification; 

In addition, any miner caught smoking or carrying smoking ma- 
terials shall be subject to a civil penalty of $250 for each occurence 
of the violation. 

It also should be pointed out that the $10,000 civil penalty provided 
in the bill refers to the maximum that can be assessed for a violation. 
Penalties approaching that amount would be used only in the most 
severe situations. The legislation, in fact, lists several factors to be 
considered in moderating the size of the penalty. These considerations 
are the gravity of the violation, the operator's previous record, the 
operators good faith efforts for compliance, and the size of the min- 
ing operation. In other words, there are numerous avenues for mitigat- 
ing the penalty. And, of course, due process remedies are available to 
the operators if they wish to appeal the penalties. 

In addition, MESA has adopted a schedule or gradation of viola- 
tions to provide consistency in imposing penalties under the Coal 
Act. The committee recognizes that such a schedule will be equally 
applicable to situations in noncoal mining and should allay unwar- 
ranted misapprehensions by operators of excessively heavy fines. As 
a matter of fact, the average penalty under the Coal Act is $200 per 
violation. 

WITHDRAWAL ORDERS 

Withdrawal orders may be issued for only two reasons under the 
Metal and Nonmetal Act: imminent danger and failure to abate a 
violation. Withdrawal is the main remedy used to force compliance 
with a standard since no dollar penalties are regularly assessed in 
conjunction with the issuance of a notice. H.R. 4287 provides three 
more instances in which withdrawal orders may be issued. These to- 
gether with the penalty provisions just described offer greater flexi- 
bility in encouraging compliance. 



377 



21 

Under the Mine Safety and Health Act of 1977 additional with- 
drawal orders may be issued : 

(1) When an operator commits two unwarrantable failures to 
comply within a 90- day period ; 

(2) When an operator commits other similar violations after 
a previous order has been issued under (1) above ; 

(3) When there exist in a mine potentially dangerous conditions 
that cannot be abated through existing technology. 

INJUNCTIONS 

Under the Metal and Nonmetal Act the Secretary may institute a 
permanent or temporary injunction whenever an operator : 

(1) Ee fuses to comply with an order or decision ; 

(2) Hinders the Secretary or the Secretary of HEW in carry- 
ing out this act ; 

(3) Refuses to admit representatives of the Secretary of Labor 
or HEW to the mine ; 

(4) Refuses to permit inspection or investigation of an accident 
or occupational disease ; or 

(5) Refuses to furnish information requested by the Secretary 
or the Secretary of HEW. 

Under H.R. 4287, one additional instance in which an injunction 
may be used is added. The Secretary may also institute an injunction 
whenever an operator : 

(6) Refuses to permit access to and copying of records deter- 
mined to be necessary by the Secretary or the Secretary of HEW. 

APPEALS TO THE SECRETARY AND JUDICIAL REVIEW 

The Mine Safety and Health Act of 1977 provides for an appeal to 
the Secretary to review any withdrawal order issued, or any penalty 
assessed, pursuant to the act. 

Under the Metal and Nonmetal Act a withdrawal order issued to 
a mine operator could be appealed to the Secretary or to the Metal 
and Nonmetallic Mine Safety Board of Review. Since all appeals 
were actually made to the Secretary, the Metal and Nonmetallic Mine 
Safety Board of Review was abolished by the 94th Congress for lack 
of any cases. 

For purposes of carrying out his review functions under the Mine 
Safety and Health Act of 1977, the Secretary of the Interior has es- 
tablished an administrative review system inside the Department of 
the Interior (which will be transferred to the Department of Labor). 
This review system is housed in the Office of Hearings and Appeals, 
the entire adjudicatory arm of the Secretary of the Interior. Included 
in this office are a Hearings Division comprised of administrative law 
judges who hear the cases appealed to the Secretary and make a deter- 
mination on them, and a three-member Board of Mine Operations Ap- 
peals to hear appeals on the decisions made by the administrative law 
judges. 

The operator or party may appeal the decision of the Board to the 
appropriate circuit court of appeals, and from there to the Supreme 
Court, 



378 



22 



Civil penalties are handled differently in two respects. First, for 
processing civil penalties, the Secretary has established an informal 
assessment system housed in the Office of Assessment, from which an 
operator may request a conference or hearing to protest a proposed 
penalty within the allotted time period. If an agreement cannot be 
reached, the operator may then file with the Office of Hearings and 
Appeals for review by an administrative law judge, and may appeal 
that decision to the Board, then to the circuit court of appeals, and 
then to the Supreme Court. 

If, however, the operator does not contest the penalty assessed him, 
but rather does not pay it, the case is referred to a U.S. attorney and 
filed in the appropriate U.S. district court. The derision from that 
court is appealable to a circuit court of appeals, and from there to the 
Supreme Court. 

IftLLTNG OPERATION'S 

Since the passage of the Occupational Safety and Health Act, a 
tug-of-war has resulted over the inspection of milling operations by 
both MESA and OS preventatives of unions of mill workers 

testified before the committee - years ago that they were being in- 
spected by both agencies, and wished to he placed under the jurisdic- 
tion of one or the other, bul not both. 

To a certain extent the problem v ;i- resolved by a memorandum 1 of 
understanding agreed upon by MESA and OSIIA. However, this 
year the committee heard teshtamony from Thomas F. Miechur, Pres- 
ident of United Cement. Lime and Gypsum Workers' international 
Union to the effect that his members employed in the portland cement 
industry were now. without prior consultation or notice to the union, 
covered under MESA^s definition of milling. Mr. Miechur testified 
on March 21, 1977 on the inferiority of the Metal and Nonmetal Act 
as it applied to his milling operations and the disappointment of the 
members that they were not still covered under the Occupational 
Safety and Health Act. Pie stated : 

What did our members lose ? They lost the right to a formal 
■complaint and inspection procedure. MESA does not have 
that. They lost their legal right to walk around with the in- 
spector. MESA does not have that. They lost their right to 
contest abatement periods. They were forced to give up specific 
and enforceable OSHA standards for vague standards pro- 
mulgated by MESA — many of which are advisory and not 
mandatory. 

WTiat have our members gained? Nothing. There have 
been more inspections under MESA than there had bee under 
OSHA. But we have found that quantity does not make 
quality. 

The definition of "mine" in H.R. 4287 includes milling operation. 
The bill also specifies that in making a determination of what con- 
stitutes mineral milling for purposes of this act, the Secretary shall 
give due consideration to the convenience of administration resulting 
from the delegation to one Assistant Secretary of all authority with 



379 



23 

respect to the health and safety of miners employed at one physical 
establishment. 

Fatality rates in the milling operations have fluctuated between 
0.12 fatalities per million man-hours worked and 0.20 fatalities per 
million man-hours worked over the last 10 years without showing any 
definite trend in downward direction. The committee sees a great need 
for increased efforts to reduce fatalities and injuries occurring in 
milling operations. 

MINER RIGHTS AND ENTITLEMENTS 

Under the Metal and Nonmetal Act, miners are provided with few 
rights and entitlements. They are not protected against discrimination 
by mine operators. They may not request an inspection when they 
believe that a violation of a health or safety standard exists. They have 
no opportunity to accompany the inspector on his rounds. They have 
no legislative mandate to receive pay for time they are idled when 
a mine is closed by a withdrawal order. 

The Mine Safety and Health Act of 1977 expands their protection 
and increases their entitlements in the following ways: 

It provides for an increase in the body of standards, especially by 
requiring rapid consideration and incorporation of the advisory 
standards under the Metal and Nonmetal Act. 

It protects the health and safety of miners by requiring at least four 
inspections o,f underground mines each year. ' 

It implements a system of mandatory penalties for violations cited 
and for other situations in which an operator fails to comply with 
provisions of this act. 

It provides for informing miners on the results of an inspection by 
mandating that notices of violations cited by an inspector be posted 
at the office bulletin board where they are easily visible, and that 
copies of notices, orders, etc. shall be mailed to miners' representatives. 

It provides that a representative of the miners may accompany the 
inspector at the time of any inspection. 

It provides that whenever a representative of the miners hase reason- 
able grounds to believe that a health or safety standard violation or 
imminent danger exists, he may obtain an immediate inspection by 
giving notice in writing to his authorized representative of the Mine 
Safety and Health Administration. 

It provides for the education of miners with regards to standards 
applicable to the mines by requiring that the Secretary send a copy 
of every proposed standard or regulation at the time of publication in 
the Federal Register to a representative of the miners at each mine. 
In addition, a copy shall be posted on the bulletin board by the 
operator. 

It provides that metal and nonmetal miners idled by a withdrawal 
order will receive their regular compensation for the balance of the 
shift during which idlement occurs. Workers on the following shift 
will receive pay for four hours of work if the order is not terminated. 
If the mine is closed because of failure of the operator to comply, 



20-040 O - 78 - 25 



380 



24 

miners idled will receive their regular rates of pay for one week or 
until the mine is reopened, whichever is shorter. 

It prohibits discrimination against miners for filing a safety com- 
plaint or exercising statutory rights under this act. The Secretary. 
after determining that there is probable cause for the miner's com- 
plaint, shall arrange for an investigation. Appeal from the Secre- 
tary's decision shall go to the Board, and from there to the courts. 

It provides that withdrawal orders may be issued in several in- 
stances, in addition to those provided for in the Metal and Xonmetal 
Act, to protect miners from conditions that are unsafe and 
unhealthful. 

Finally, it provides that in case of a mine accident, an authorized 
representative of the Secretary, when present, may issue such safety 
orders as he deems appropriated 

OPERATOR RIGHTS AND ENTITLEMENTS 

The Metal and Nonmetal Act contains virtually no specific protec- 
tions for mine operators. The adoption of H.R. 4287 introduces a 
number of entitlements. 

First, mine operators are permitted to apply for and obtain vari- 
ances from a standard if they can convince the Secretary that an al- 
ternative method will guarantee no less protection for the miners. 

Second, every mine operator is entitled to receive a copy of every 
proposed standard or regulation at the time of publication in the Fed- 
eral Register. This gives him immediate notification of a proposal 
and affords him time to submit written data or comments and request 
a hearing within the 30-day time limit incorporated into the act. 

ADMINISTRATION 

The committee believes that H.R. 4287 upgrades the administration 
of miner health and safety in a number of ways. As indicated previ- 
ously, under the Metal and Xonmetal Act and the Coal Act, the con- 
flict has always existed within the Department of the Interior, between 
the goal of production of mine commodities on one hand, and the re- 
sponsibility for health and safety of miners on the other. Transfer of 
mine safety enforcement responsibility to the Department of Labor 
will solve this conflict. 

Under the Metal and Xonmetal Act mine operators are not required 
to report commencement of a mining operation. Under H.R. 4287, each 
operator of a mine shall file with the Secretary the name and address 
of the mine and the person who controls or operates the mine. 

A fear expressed by miners and other groups has been that if min- 
ing safety and enforcement responsibilities are transferred to the 
Department of Labor, the former MESA operation will become buried 
in OSHA. To guard against this happening, the committee has placed 
the former MESA group under a separate Assistant Secretary for 
Mine Safety and Health who shall be head of the Mine Safety and 
Health Administration, which shall be on a par with the Occupational 
Safety and Health Administration, also headed by its own Assistant 



381 



25 

Secretary. To further guard against mingling of funds, H.K. 4287 
requires that separate budgets shall be included in the President's 
budget for the Mine Safety and Health Administration and for the 
Occupational Safety and Health Administration. 

EFFECT OX STATE LAWS 

Under the Metal and Nonmetal Act States are encouraged to develop 
and enforce their own State plans meeting Federal requirements. Six 
States have State plans currently in effect. These are Arizona, Colo- 
rado, Xorth Carolina, New Mexico, Utah, and Virginia. Under the 
Metal and Nonmetal Act the Secretary delegates his authority to 
States with approved plans to carry out his functions. 

Because State plans are not funded under the Metal and Nonmetal 
Act, but are entirely self -supported. Federal funds would not be re- 
moved from these plans with the repeal of the Metal and Nonmetal 
Act. As a result, these State plans would be expected to continue in 
conjunction with Federal enforcement under H.R. 4287. It would be 
a dual system which encourages State participation while at the same 
time not relinquishing Federal enforcement. However, the Federal 
law would supersede any State law in conflict with it. State laws pro- 
viding more stringent standards than exist under the Federal law, 
however, would not be held in conflict with the act. 

Committee Action 

On May 4, 1977, the full Committee on Education and Labor voted 
19 to 9 to report the bill for House consideration. 

Inflationary Impact Statement 

Although there may be some initial cost because operators need to 
comply with more effective health and safety standards, the savings 
over the longer period from reduced workers 7 compensation premiums 
and other costs resulting from death and injury of miners, including 
lost work days, are expected to offset these costs. Furthermore, the 
resources that are siphoned off to pay for workers' compensation bene- 
fits and medical expenses can be made available for more productive 
use. 

Requirements of Rule XI of the Rules of the House of 
Representatives 

oversight 

With respect to the matters covered by this bill, the Committee on 
Government Operations has not submitted oversight findings and 
recommendations to the Committee on Education and Labor, and other 
than this report and the hearings previously described therein, there 
have been no oversight findings and recommendations by the Commit- 
tee on Education and Labor. The Subcommittee on Labor Standards 
has announced its intentions to conduct oversight hearings into the 
Federal Coal Mine Health and Safety Act of 1969. 



382 



26 



Congress of the United States, 

Congressional Budget Office, 

Washington, D.C., May 10, 1977. 
Hon. Carl D. Perkins, 

Chairman, Committee on Education and Labor, UjS. House of Repre- 
sentatives, Washington, D.C. 
Dear Mr. Chairman : Pursuant to section 403 of the Congressional 
Budget Act of 1974, the Congressional Budget Office has prepared the 
attached cost estimate for H.R. 4287, the Federal Mine Health and 
Safety Act of 1977. 

Should the committee so desire, we would be pleased to provide fur- 
ther details on the attached cost estimate. 
Sincerely, 

Robert A. Levine, 
(For Alice M. Rivlin, Director) . 
Attachment. 

Congressional Budget Office 

cost estimate 

1. Bill number : H.R. 4287. 

2. Bill title : Federal Mine Health and Safety Act of 1977. 

3. Bill purpose: H.R. 4287 repeals the Federal Metal and Non- 
metallic Mine Safety Act and amends the Federal Coal Mine Health 
and Safety Act of 1969 to include all mines, coal, and other. In addi- 
tion, H.R. 4287 provides for the following : 

A. Transfer of functions for Mine Enforcement and Safety 
Administration from the Department of the Interior into the 
Department of Labor ; and 

B. Establishment of an Office of the Assistant Secretary of 
Labor for Aline Safety and Health. 

4. Cost estimate : 

(In millions of dollars; fiscal years) 





1978 


1979 


1980 


1981 


1982 


Budget authority 


4.7 


5.1 
-6.0 


5.4 
-12.0 


5.7 
-18.0 


6.0 


Offsetting receipts 


-2.0 


-20.0 


Net costs or savings 


2.7 


-.9 


-6.6 


-12.3 


-14.0 









5. Basis for estimate : The cost estimate reflects an increase in ac- 
tivity in the area of Assessment of Civil Penalties. Currently, no such 
provision exists under the Federal Mine and Nonmetallic Mine Safety 
Act, so the application of this provision as under the Federal Coal 
Mine Health and Safety Act of 1989 would require additional 
personnel. 

Based upon their experience related to coal violations, the Mine 
Enforcement and Safety Administration (MESA) calculates that 130 
positions would be necessary to process 130,000 violations of non-coal- 
mine activity. Using a per-position cost of $24,500, an additional 
$3.2 million is estimated to be required in the first year. 

In addition, the appeals process, currently conducted by the Depart- 
ment of the Interior's Office of Hearings and Appeals, would require 
another 75 positions due to the increase in responsibility and work- 



383 



27 

load. Personnel costs for this office are estimated at $20,000 per posi- 
tion, or a total cost of SI. 5 million. 

Outyear personnel costs are inflated by CBO projections for Gen- 
eral Schedule pay increases. Also, the estimate assumes that costs for 
fiscal year 1978 are based upon a full year of activities. 

Because of the increased activity in assessment of civil penalties, 
MESA estimates that 820 million will be assessed against metal and 
lionmetallic mine operators per year (approximately 130,000 viola- 
tions at 8150 each). The amount of offsetting receipts into the U.S. 
Treasury from payments of fines is calculated on the basis of a col- 
lection rate of 10 percent the first year, 20 percent the second year, 30 
percent the third and fourth years, and 10 percent the fifth year based 
on previous experience with coal violations. It is assumed that an 
additional $20 million will be assessed in each subsequent year. 

Although other provisions of the bill include the creation of new 
responsibilities within the Department of Labor, these should not 
generate additional costs, for they represent a one-to-one transfer from 
the Department of the Interior. 

6. Estimate comparison : Xot applicable. 

7. Previous CBO estimate : None, 

B. Estimate prepared by : Mary Plaska. 
9. Estimate approved by : 

J. O'Xeill 
(For James L. Blum, 
Assistant Director for Budget Analysis). 

Sectiox-By-Sectiox Summary of H.K. -42S7 (Mr. Gaydos) 

"Federal Mxne Safety and Health Amendments Act of 1977" 

TITLE I— AMENDMENTS TO THE GENERAL PROVISIONS 
OF THE FEDERAL COAL MINE HEALTH AND SAFETY 
ACT OF 1969 

SECTION 101 — SHORT title 

This section renames the Federal Coal Mine Health and Safety Act 
of 1969 (hereafter referred to as the Coal Act) as the "Federal Mine 
Safety and Health Act of 1977", 

SECTION 102 — DEFINITIONS AND APPLICABILITY 

Section 102(a)(1) amends section 2 of the Coal Act relating to 
findings and purpose by inserting "or other" immediately after "coal" 
wherever it appears. 

Section 102(a)(1) amends section 2 of the Coal Act relating to 
findings and purpose by inserting "or other*' immediately after "coal"' 
wherever it appears. 

Section 102(a) (2) amends section 2(g) (1) of the Coal Act by strik- 
ing out "the Interior" and inserting ••Labor"' where it designates the 
Secretary to develop and promulgate mandatory safety and health 
standards. 

Section 102(b)(1) amends the definition of "Secretary" generally 
as used in the Coal Act. to imply the Secretary of Labor rather than 
the Secretary of the Interior. 



384 



28 

Section 102(b)(2) amends the definition of "Mine" to read "coal 
or other mine" and to include (1) an area of land from which 
minerals are extracted in non-liquid form, or if in liquid form are 
extracted with workers underground; (2) private ways and roads 
appurtenant to such area; and (3) lands, passageways, facilities, etc., 
to be used in or resulting from the work of extracting minerals, 
including custom coal preparation facilities and milling operations 
except property used in the milling of source minerals defined in the 
Atomic Energy Act of 1954, as amended. This subsection further 
provides that in making a determination as to what constitutes milling 
operations, the Secretary shall give due consideration to the con- 
venience of administration resulting from the delegation to one Assist- 
ant Secretary of all authority with respect to the health and safety 
of miners employed at one physical establishment. 

Section 102(b)(3) amends subsections (d), (e), (g), and (j) of 
the definitions section of the Coal Act (defining "operator", "agent", 
"miner", and "imminent danger" respectively) to insert "or other" 
immediately after "coal" wherever it appears. 

Section 102(b) (4) further amends the definitions section (section 3) 
of the Coal Act to add a definition for "Administration", implying 
the Mine Safety and Health Administration in the Department of 
Labor. 

Section 102(c) amends section 4 of the Coal Act, defining mines 
subject to the act, to insert "or other" immediately after "coal". 

TITLE II— MINE SAFETY AND HEALTH STANDARDS 
AMENDMENTS 

SECTION 201 AMENDMENTS TO TITLE I 

This section amends title I of the Coal Act by inserting "or other" 
immediately after "coal" wherever it appears. In addition, NIOSH 
is directed to list toxic substances found in the mines and promulgate 
standards thereto. 

TITLE III— MISCELLANEOUS PROVISIONS 

SECTION 301 — TRANSFER MATTERS 

Section 301(a) transfers to the Secretary of Labor all functions of 
the Secretary of the Interior under the Coal Act and the Federal 
Metal and Nonmetallic Mine Safety Act (hereafter referred to as the 
"Metal and Nonmetal Act"), except safety research responsibilities 
previously assigned to the Secretary of the Interior under section 501 
of the Coal Act. 

Section 301(b) (1) provides that mandatory standards relating to 
mines issued by the Secretary of the Interior under both the Coal and 
Metal and Nonmetal Acts shall remain in effect, applicable to the 
respective mines, until the Secretary shall issue new or revised stand- 
ards under the Federal Mine Safety and Health Act of 1977, applicable 
to coal and non-coal mines respectively. 



385 



29 

Section 301(b) (2) provides that within 60 days after the effective 
date of this act the Secretary shall establish an advisory committee 
which shall within 180 days after the date of its establishment review 
the advisory health and safety standards previously issued under the 
Metal and Nonmetal Act and recommend to the Secretary which 
standards or modifications thereof, which do not substantially dimin- 
ish the health and safety of miners, should be promulgated as health 
and safety standards under the Federal Mine Safety and Health Act 
of 1977. Within 60 days after the recommendations of the advisory 
committee, the Secretary shall publish each standard, so recommended 
for adoption under this act by publication in the Federal Register,, 
and shall afford interested persons 25 days to submit written data or 
comment. Within 30 days after the close of the comment period, the 
Secretary shall promulgate by publication in the Federal Eegister a 
standard based on the advisory committee recommendation with or 
without modification, and the data and comments received thereon,, 
unless the Secretary determines that such standard will not promote 
the health and safety of miners and publishes an explanation of that 
determination in the Federal Register. 

Section 301(b) (3) provides that all interpretations, regulations and 
instructions of the Secretary of the Interior or the Director of the 
Bureau of Mines in effect on the date of enactment and not inconsis- 
tent with any provision of or amendment to this act, shall be pub- 
lished in the Federal Register and shall continue in effect until modi- 
fied or superseded in accordance with provisions of this act. 

Section 301(c) (1) provides that all unexpended balances of appro- 
priations, personnel, property, records, etc. which are used primarily 
with respect to any function here transferred, shall be transferred to 
the Department of Labor. 

The transfer of personnel shall be without reduction in classification 
or compensation for 1 year after the transfer, except that the Secre- 
tary of Labor shall have full authority to assign personnel during the 
1-year period in order to efficiently carry out functions transferred to 
him under this act. 

Section 301(c) (2) provides that all existing orders, effective deci- 
sions, and similar legal matters related to functions here transferred 
shall continue in effect until modified, terminated, superseded, or re- 
pealed by the Secretary of Labor, by any court of competent jurisdic- 
tion, or by operation of law. 

Section 301(c) (3) provides that the transfer provisions shall not 
affect pending proceedings which were begun prior to the effective 
date of this act, except that proceedings involving functions trans- 
ferred to the Secretary shall be continued before the Secretary of 
Labor. 

Section 301 (c) (4) provides that these transfer provisions shall not 
affect suits begun prior to the effective date of this act. except that 
suits involving functions transferred to the Secretary shall be con- 
tinued by the Secretary of Labor. 

Section 301(d) defines the word "function" as used in this section 
to include power and duty. The transfer of a function shall also be a 
transfer of all functions which are exercised by any officer of such 
agency or department. 



386 



30 

SECTION 30 2 MINE SAFETY AND HEALTH ADMINISTRATION 

Section 302(a) establishes in the Department of Labor a Mine 
Safety and Health Administration to bo headed by an Assistant Sec- 
retary of Labor for Mine Safety and Health appointed by the Presi- 
dent, by and with the advice and consent of the Senate. The Secretary 
is authorized and directed, except as specifically provided otherwise, 
to carry out his functions through the Mine Safety and Health Admin- 
istration. 

Section 302(b) amends section 5315 of title 5 of the United States 
Code (Administrative Procedure Act) to include in the listing of level 
IV of the Executive Schedule the Assistant Secretary for Mine Safety 
and Health. 

SECTION 303 — AMENDMENTS WITH RESPECT TO MINE SAFETY AND HEALTH 

ADMINISTRATION 

Section 303 (a) (1) amends section 501(a) of the Coal Act, relating 
to research by inserting "or other" immediately after "coal" wherever 
it appears, and by striking out "the Secretary and" and inserting "the 
Secretary of the Interior and". This serves to maintain safety research 
functions under the Secretary of the Interior. 

Section 303(a) (2) amends section 501(b) of the Coal Act relating 
to research and assigning health and safety research to the Secretaries 
of HEW and the Interior, respectively, by inserting "or other" imme- 
diately after "coal" each time it appears, and by providing that mine 
health activities shall be carried out through the Xational Institute 
for Occupational Safety and Health, and by providing that the health 
and safety research activities carried out by the two Secretaries shall 
be done in coordination with the Secretary of Labor. 

Section 303(a) (3)^ inserts "or other" immediately after "coal" in 
section 501(d) relating to research responsibilities of the Secretary 
of HEW. 

Section 303(b) amends section 502 of the Coal Act, providing for 
training and education of miners, by inserting "or other" immediately 
after "coal" each time it appears. 

Sections 303(c) and (d) amend sections 503(a), (b). (f) and (g) 
of the Coal Act, providing assistance to States, by inserting "or other" 
immediately after "coal". 

Section 303(e) amends section 505 of the Coal Act, outlining in- 
spector qualifications and training, to provide that, to the maximum 
extent feasible, in the selection of persons for appointment as mine 
inspectors, no person shall be so selected unless he has had at least 5 
years' practical mining experience. Furthermore, in assigning mine in- 
spectors to the individual mines, due consideration shall be given, to 
the extent possible, to their previous experience in the particular type 
of mining operations where such inspections are to be made. 

Section 303 (f) amends section 506 (b) pertaining to the effect of this 
act on State laws and standards, by inserting "or other" immediately 
after "coal" each time it appears. 

Section 303(g) amends section 511 of the Coal Act, requiring the 
writing of various reports required to be submitted to Congress, by 
inserting "or other" immediately after "coal". 



387 



31 

Section 303(h) amends section 502 of the Coal Act relating to train- 
ing and education to add a new subsection (c) which provides that the 
National Mine Health and Safety Academy shall be maintained as 
an agency of the Department of the Interior. The Academy shall be 
responsible for the training of mine safety and health inspectors under 
section 505 of the act, and for training of technical and support person- 
nel of the Mine Safety and Health Administration, and for any other 
training programs for mine inspectors, mining personnel, or other 
persons as the Secretaries of Labor and Interior shall designate. 

In performing this function, the Academy shall have the authority 
to enter into cooperative educational and training agreements with 
educational institutions. State governments, labor organizations, and 
mine operators and related industries. Training shall be conducted by 
the Academy in accordance with curriculum needs and assignment of 
instructional personnel established by the user. 

Furthermore, in performing its function, the National Mine Health 
and Safety Academy shall use the facilities and personnel of the De- 
partment of the Interior and such other personnel as shall be mutually 
agreed upon by the Secretaries of Labor and the Interior. The Secre- 
tary of the Interior shall, upon request by the Academy, assign to the 
Academy such officers and employees as the Director of the Academy 
deems necessary for the performance of the duties and functions of 
the Academy. 

Finally, the Secretary of the Interior shall conduct his safety re- 
search responsibilities under section 501 of the Coal Act in coordina- 
tion with the Secretary of Labor, and the Secretaries of Labor and the 
Interior are authorized to enter into contractual or other agreements 
for the performance of such safety-related research. 

SECTION 3 04 — SAVINGS PROVISION 

This section provides that nothing contained in this act or any 
amendment made by this act shall be construed to reduce the number 
of inspectors engaged in enforcement of the Coal Act and the Metal 
and Xonmetal Act as in effect prior to the effective date of this act. or 
to reduce the number of inspectors engaged in the enforcement of the 
Occupational Safety and Health Act of 1970. 

SECTION 3 5 — BUDGET PROVISION 

In the preparation of the Budget message, the President shall set 
forth as separate appropriation accounts amounts required for appro- 
priation for mine health and safety pursuant to the Federal Mine 
Health and Safety Act of 1977 and for occupational safety and health 
pursuant to the Occupational Safety and Health Act of 1970. 

SECTION 306 — REPEALER 

This section repeals the Federal Metal and Nonmetallic Mine 
Safety Act. 

SECTION 307 — EFFECTIVE DATE 

The section provides that the act as amended shall take effect 90 
days after the date of enactment, except that the Secretary of Labor 
is authorized to establish such rules and regulations as may be neces- 
sary for the efficient transfer of functions provided under this act. 



388 



Changes in Existing Law Made by the Bill, as Reported 

In compliance with clause 3 of Rule XIII of the Rules of the House 
of Representatives, changes in existing law made by the bill, as re- 
ported, are shown as follows (existing law proposed to be omitted is 
enclosed in black brackets, now matter is printed in italics, existing 
law in which no change is proposed is shown in roman) : 

Federal Coal Mine Health and Safety Act of 1969 

AN ACT To provide for the protection of the health and safety of persons work- 
ing in the coal mining industry of the United States, and for other purposes 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act may 
be cited as the ["Federal Coal Mine Health and Safety Act of 1969'! 
"Federal Mine Safety arul Health Act of 1977". 

FINDINGS AND TURPOSE 

Sec. 2. Congress declares that — 

(a) the first priority and concern of all in the coal or other 
mining industry must be the health and safety of its most precious 
resource — the minor; 

(b) deaths and serious injuries from unsafe and unhealthful 
conditions and practices in the coal or other mines cause grief and 
suffering to the miners and to their families; 

(c) there is an urgent need to provide more effective means and 
measures for improving the working conditions and practices in 
the Nation's coal or other mines in order to prevent death and 
serious physical harm, and in order to prevent occupational dis- 
eases originating in such mines; 

(d) the existence of unsafe and unhealthful conditions and 
practices in the Nation's coal or other mines is a serious impedi- 
ment to the future growth of the coal or other mining industry 
and cannot, be tolerated ; 

(e) the operators of such mines with the assistance of the 
miners have the primary responsibility to prevent the existence 
of such conditions and practices in such mines; 

(f) the disruption of production and the loss of income to 
operators and miners as a result of coal or other mine accidents or 
occupationally caused diseases unduly impedes and burdens com- 
merce; and 

(g) it is the purpose of this Act (1) to establish interim manda- 
tory health and safety standards and to direct the Secretary of 
Health, Education, and Welfare and the Secretary of [the In- 
terior] Labor to develop and promulgate improved mandatory 
health or safety standards to protect the health and safety of the 

(33) 



389 



34 



Nation's coal or other miners ; (2) to require that each operator of 
a coal or other mine and every miner in such mine comply with such 
standards; (3) to cooperate with, and provide assistance to, the 
States in the development and enforcement of effective State 
coal or other mine health and safety programs ; and (4) to improve 
and expand, in cooperation with the States and the coal or other 
mining industry, research and development and training programs 
aimed at preventing coal or other mine accidents and occupation- 
ally caused diseases in the industry. 

DEFINITIONS 

Sec. 3. For the purpose of this Act, the term — 

(a) "Secretary" means the Secretary of [the Interior] Labor 
or his delegate ; 

(b) "commerce" means trade, traffic, commerce, transporta- 
- tion, or communication among the several States, or between a 

place in a State and any place outside thereof, or within the Dis- 
trict of Columbia or a possession of the United States, or between 
points in the same State but through a point outside thereof; 

(c) "State" includes a State of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, American Samoa, Guam, and the Trust Territory of the 
Pacific Islands; 

(d) "operator" means any owner, lessee, or other person who 
operates, controls, or supervises a coal or other mine ; 

(e) "agent" means any person charged with responsibility for 
the operation of all or a part of a coal or other mine or the super- 
vision of the miners in a coal or other mine ; 

(f) "person" means any individual, partnership, association, 
corporation, firm, subsidiary of a corporation, or other organiza- 
tion ; 

(g) "miner" means any individual working in a coal or other 
mine; 

(h) "coal mine" means an area of land and all structures, facili- 
ties, machinery, tools, equipment, shafts, slopes, tunnels, excava- 
tions, and other property, real or personal, placed upon, under, or 
above the surface of such land by any person, used in, or to be used 
in, or resulting from, the work of extracting in such area bitum- 
inous coal, lignite, or anthracite from its natural deposits in the 
earth by any means or method, and the work of preparing the coal 
so extracted, and includes custom coal preparation facilities: 

(1) "Coal or other mine 1 '' means (A ) an area of land from which 
minerals are extracted in nonliquid form or, if in liquid form, are 
extracted with workers underground, (B) private ways and roads 
appurtenant to such area, and (O) lands, excavations , under- 
ground passageways, shafts, slopes, tunnels and workings, struc- 
tures, facilities, equipment, machines, tools, or other property in- 
cluding impoundments, retention dams, and tailings ponds, on 
the surface or underground, used in, or to be used in, or resulting 
from, the work of extracting such minerals from tlieir natural de- 
posits in nonliquid form, or if in liquid form, with workers under- 



390 



35 

ground, or used in the milling of such miner ah, or the work of 
preparing coal, and includes custom coal preparation facilities, 
except that with respect to protection against radiation hazards 
&uch terms shall not include property used in the milling of source 
minerals defined in the Atomic Energy Act of 196 1+, as amended. 
In making a determination of what constitutes mineral milling 
for the purposes of this Act the Secretary shall give due consider- 
ation to the convenience of administration resulting from the dele- 
gation to one Assistant Secretary of all authority with respect to 
the health and safety of miners employed at one physical estab- 
lishment. 

) For purposes of titles II, III, and IV 

( i) ''work of preparing the coal" means the breaking, crushing, 
sizinir, cleaning, washing, drying, mixing, storing, and loading 
of bituminous coal, lignite, or anthracite, and such other work of 
preparing such coal as is usually done by the operator of the coal 
mine; 

( j ) "imminent danjrer" means the existence of any condition or 
practice in a coal or other mine which could reasonably be expected 
to cause death or serious physical harm before such condition or 
practice can be abated : 

(k) "accident" includes a mine explosion, mine ignition, mine 
fire, or mine inundation, or injury to, or death of, any person; 

(1) "mandatory health or safety .standard" means the interim 
mandatory health or safety standards established by titles II and 
III of this Act, and the standards promulgated pursuant to title 
I of this Act ; [and] 

(m) "Panel" means the Interim Compliance Panel established 
by this Act [.] ; and 

(n) "Administration" means the Mine Safety and Health Ad- 
ministration in the Department of Labor. 

MIXES SUBJECT TO ACT 

Sec. 4. Each coal or other mine, the products of which enter com- 
merce, or the operations or products of which affect commerce, and 
each operator of such mine, and every miner in such mine shall be sub- 
ject to the provisions of this Act. 

******* 
TITLE I— GENERAL 

HEALTH AND SAFETY STANDARDS,* REVIEW 

Sec. 101 (a\ The Secretary shall, in accordance with the procedures 
set forth in tnis section, develop, promulgate, and revise, as may be 
appropriate, improved mandatory safety standards for the protection 
of life and the prevention of injuries in a coal or other mine, and shall, 
in accordance with the procedures set forth in this section, promulgate 
the mandatory health standards transmitted to him by the Secretary 
of Health, Education, and Welfare. 



391 



36 



(b) No improved mandatory health or safety standard promulgated 
under this title shall reduce the protection afforded miners below that 
provided by any mandatory health or safety standard. 

(c) In the development and revision of mandatory safety stand- 
ards, the Secretary shall consult with the Secretary of Health, Edu- 
cation, and Welfare, the Secretary of Labor, and with other interested 
Federal agencies, appropriate representatives of State agencies, ap- 
propriate representatives of the coal or other mine operators and 
miners, other interested persons and organizations, and such advisory 
committees as he may appoint. Such development and revision of man- 
datory safety standards shall be based upon research, demonstrations, 
experiments, and such other information as may be appropriate. In 
addition to the attainment of the highest degree of safety protection 
for miners, other considerations shall be the latest available scientific 
data in the field, the technical feasibility of the standards, and experi- 
ence gained under this and other safety statutes. 

(d) The Secretary of Health, Education, and Welfare shall, in 
accordance with the procedures set forth in this section, develop and 
revise, as may be appropriate, improved mandatory health standards 
for the protection of life and the prevention of occupational diseases 
of miners. In the development and revision of mandatory health stand- 
ards, the Secretary of Health, Education, and Welfare shall consult 
with the Secretary, the Secretary of Labor, and with other interested 
Federal agencies, appropriate representatives of State agencies, appro- 
priate representatives of the coal or other mine operators and miners, 
other interested persons and organizations, such advisory committees 
as he may appoint, and, where appropriate, foreign countries. Such 
development and revision of mandatory standards shall be based upon 
research demonstrations, experiments, and such other information as 
may be appropriate. In addition to the attainment of the highest degree 
of health protection for the miner, other considerations shall be the 
latest available scientific data in the field, the technical feasibility of 
the standards, and experience gained under this and other health 
statutes. Mandatory health standards which the Secretary of Health, 
Education, and Welfare develops or revises shall be transmitted to the 
Secretary, and shall thereupon be published in the Federal Register by 
the Secretary as proposed mandatory health standards. 

(e) The Secretary shall publish proposed mandatory health and 
safety standards in the Federal Register and shall afford interested 
persons a period of not less than thirty days after publication to sub- 
mit written data or comments. In the case of mandatory safety stand- 
ards, except as provided in subsection (f ) of this section, the Secretary 
may, upon the expiration of such period and after consideration of all 
relevant matter presented, promulgate such standards with such modi- 
fications as he may deem appropriate. In the case o.f mandatory health 
standards, except as provided in subsection (f) of this section, the 
Secretary of Health, Education, and Welfare may, upon the expira- 
tion of such period and after consideration of all relevant matter pre- 
sented to the Secretary and transmitted to the Secretary of Health, 
Education, and' Welfare, direct the Secretary to promulgate such 
standards with such modifications as the Secretary of Health, Educa- 
tion, and Welfare may deem appropriate and the Secretary shall there- 
upon promulgate such standards. 



392 



37 



(f ) On or before the last day of any period fixed for the submission 
of written data or comments under subsection (e) of this section, any 
interested person may file with the Secretary written objections to a 
proposed mandatory health or safety standard, stating the grounds 
therefor and requesting a public hearing on such objections. As soon 
as practicable after the period for filing such objections has expired, 
the Secretary shall publish in the Federal Register a notice specifying 
the proposed mandatory health or safety standards to which objections 
have been filed and a hearing requested, , 

(g) Promptly after any such notice i6 published in the Federal 
Register by the Secretary under subsection (f) of this section, the 
Secretary, in the case of mandatory safety standards, or the Secretary 
of Health, Education, and Welfare, in the case of mandatory health 
standards, shall issue notice of, and hold, a public hearing for the 
purpose of receiving relevant evidence. Within sixty days after com- 
pletion of the hearings the Secretary who held the hearing shall make 
findings of fact which shall be public. In the case of mandatory safety 
standards, the Secretary may promulgate such standards with such 
modifications as he deems appropriate. In the case of mandatory health 
standards the Secretary of Health, Education, and Welfare may 
direct the Secretary to promulgate the mandatory health standards 
with such modifications as the Secretary of Health, Education, and 
Welfare deems appropriate and the Secretary shall thereupon promul- 
gate the mandatory health standards. In the event the Secretary or the 
Secretary of Health, Education, and Welfare, as the case may be, 
determines that a proposed mandatory health or safety standard 
should not be promulgated or should be modified, he shall within a 
reasonable time publish his reasons for his determination. 

The Seeretaty of Health* Education, and Welfare, an soon as possi- 
ble after the date of enactment of the Federal Mine Safety and Health 
Amendments Act of 1 '977 but in no event later than three years after 
such date, and on a continuing basis thereafter, shall, for each toxic ma- 
terial or harmful physical agent which is used or found in a coal or 
other mine, determine whether sueh material or agent m potentially 
toxic at the concentrations in which it is used or found in a coal or 
other mine. The Secretary of Health, Education, and Welfare shall 
submit svuch determination to the Secretary, together with all pertinent 
criteHa, and a proposed standard. 

(h) Any mandatory nealth or safety standard promulgated under 
this section shall be effective upon publication in the Federal Register 
unless the Secretary or the Secretary of Health, Education, and Wel- 
fare, as appropriate, specifies a later date, 

(i) Proposed mandatory health and safety standards for surface 
coal or other mines shall be published by the Secretary, in accordance 
with the provisions of this section, not later than twelve months after 
the date of enactment of this Act. Proposed mandatory health and 
safety standards for surface work areas of underground coal or other 
mines, in addition to those established for such areas under this Act, 
shall be published by the Secretary, in accordance with the provisions 
of this section, not later than twelve months after the date of enact- 
ment of this Act. 

(j) All interpretations, regulations, and instructions of the Secre- 
tary or the Director of the Bureau of Mines, in effect on the date of 



393 



38 

enactment of this Act and not inconsistent with any provision of this 
Act, shall be published in the Federal Register and shall continue in 
effect until modified or superseded in accordance with the provisions 
of this Act. j 

(k) The Secretary shall send a copy of every proposed standard or 
regulation at the time of publication in the Federal Register to the 
operator of each coal or other mine and the representative of the miners 
at such mine and such copy shall be immediately posted on the bulletin 
board of the mine by the operator or his agent, but failure to receive 
such notice shall not relieve anyone of the obligation to comply with 
such standard or regulation. 

ADVISORY COMMITTEES 

Sec. 102. (a) (1) The Secretary shall appoint an advisory committee 
on coal or other mine safety research composed of — 

(A) the Director of the Office of Science and Technology, or 
his delegate, with the consent of the Director ; 

(B ) the Director of the National Bureau of Standards, Depart- 
ment of Commerce, or his delegate, with the consent of the 
Director; 

(C) the Director of the National Science Foundation, or his 
delegate, with the consent of the Director; and 

(D) such other persons as the Secretary may appoint who are 
knowledgeable in the field of coal or other mine safety research. 

The Secretary shall designate the chairman of the committee. 

(2) The advisory committee shall consult with, and make recom- 
mendations to, the Secretary on matters involving or relating to coal or 
other mine safety research. The Secretary shall consult with, and con- 
sider the recommendations of, such committee in the. conduct of such 
research, the making of any grant, and the entering into of contracts 
for such research. 

(3) The chairman of the committee and a majority of the persons 
appointed by the Secretary pursuant to paragraph (1)(D) of this 
subsection shall be individuals who have no economic interests in the 
coal or other mining industry, and who are not operators, miners, or offi- 
cers or employees of the Federal Government or any State or local 
government. 

(b)(1) The Secretary of Health, Education, and Welfare shall 
appoint an advisory committee on coal on other mine health research 
composed of — 

(A) the Director, Bureau of Mines, or his delegate, with the 
consent of the Director ; 

(B) the Director of the National Science Foundation, or his 
delegate, with the consent of the Director ; 

(C) the Director of the National Institutes of Health, or his 
delegate, with the consent of the Director; and 

(D) such other persons as the Secretary of Health, Education, 
and Welfare may appoint who are knowledgeable in the field 
of coal or other mine health research. 

The Secretary of Health, Education, and Welfare shall designate 
the chairman of the committee. 



394 



39 



(2) The advisory committee shall consult with, and make recom- 
mendations to, the Secretary of Health, Education, and Welfare on 
matte rs involving or relating to coal or otlier mine health research. 
The Secretary of Health, Education, and Welfare shall consult with, 
and consider the recommendations of, such committee in the conduct of 
such research, the making of any grant, and the entering into of con- 
tracts for such research. 

(3) The chairman of the committee and a majority of the persons 
appointed by the Secretary of Health, Education, and Welfare pur- 
suant to paragraph (1) (D) of this subsection shall be individuals who 
have no economic interests in the coal or other mining industry, and 
who are not operators, miners, or officers or employees of the Federal 
Government or any State or local government. 

(c) The Secretary or the Secretary of Health, Education, and Wei" 
fare may appoint other advisory committees as he deems appropriate 
to advise him in carrying out the provisions of this Act. Ihe Secre- 
tary or the Secretary of Health, Education, and Welfare, as the case 
may be, shall appoint the chairman of each such committee, who shall 
be an individual who lias no economic interest in the coal or other min- 
ing industry, and who is not an operator, miner, or an officer or em- 
ployee of the Federal Government or any State or local government. A 
majority of the members of any such advisory committee appointed 
pursuant to this subsection shall be composed of individuals who have- 
no economic interests in the coal or other mining industry, and who are 
not operators, miners, or officers or employees of the Federal Govern- 
ment or any State or local government. 

(d) Advisory committee members, other than officers or employees 
of Federal, State, or local governments, shall be, for each day (includ- 
ing traveltime) during which they are performing committee business, 
entitled to receive compensation at a rate fixed by the appropriate 
Secretary but not in excess of the maximum rate of pay for grade 
GS-18 as provided in the General Schedule under section 5332 of title 
5 of the United States Code, and shall, notwithstanding the limita- 
tions of sections 5703 and 5704 of title 5 of the United States Code, 
be fully reimbursed for travel, subsistence and related expenses, 

INSPECTIONS AND INVESTIGATIONS 

Sec. 103. (a) Authorized representatives of the Secretary shall 
make frequent inspections and investigations in coal or other mines 
each year for the purpose of (1) obtaining, utilizing, and disseminat- 
ing information relating to health and safety conditions, the causes of 
accidents and the causes of diseases and physical impairments origi- 
nating in such mines, (2) gathering information with respect to manda- 
tory health or safety standards, (3) determining whether an imminent 
danger exists, and (4) determining whether or not there is compliance 
with the mandatory health or safety standards or with any notice, 
order, or decision issued under this title. In carrying out the require- 
ments of clauses (3) and (4) of this subsection, no advance notice of 
an inspection shall be provided to any person. In carrying out the 
requirements of clauses (3) and (4) of this subsection in each under- 
ground coal or other mine, such representatives shall make inspections 
of the entire mine at least four times a year. 



395 



40 



(b)(1) For the purpose of making any inspection or investigation 
under this Act, the Secretary or any authorized representative of the 
Secretary shall have a right of entry to, upon, or through any coal or 
other mine. 

(2) For the purpose of developing improved mandatory health 
standards, the Secretary of Health, Education, and Welfare or his 
authorized representative shall have a right of entry to, upon, or 
through, any coal or other mine. 

(3) The provisions of this Act relating to investigations and rec- 
ords shall be available to the Secretary of Health, Education, and 
Welfare to enable him to carry out his functions and responsibilities 
under this Act. 

(c) For the purpose of carrying out his responsibilities under this 
Act, including the enforcement thereof, the Secretary may by agree- 
ment utilize with or without reimbursement the services, personnel, 
and facilities of any Federal agency. 

(d) For the purpose of making any investigation of any accident or 
other occurrence relating to health or safety in a coal or other mine, the 
Secretary may, after notice, hold public hearings, and may sign and 
issue subpenas for the attendance and testimony of witnesses and the 
production of relevant papers, books, and documents, and administer 
oaths. Witnesses summoned shall be paid the same fees and mileage 
that are paid witnesses in the courts of the United States. In case of 
contumacy or refusal to obey a subpena served upon any person under 
this section, the district court of the United States for any district 
in which such person is found or resides or transacts business, upon 
application by the United States and after notice to such person, shall 
have jurisdiction to issue an order requiring such person to appear 
and give testimony before the Secretary or to appear and produce 
documents before the Secretary, or both, and any failure to obey such 
order of the court may be punished by such court as a contempt 
thereof. 

(e) In the event of any accident occurring in a coal or other mine, the 
operator shall notify the Secretary thereof and shall take appropriate 
measures to prevent the destruction of any evidence which would 
assist in investigating the cause or causes thereof. In the event of any 
accident occurring in a coal or other mine where rescue and recovery 
work is necessary, the Secretary or an authorized representative of the 
Secretary shall take whatever action he deems appropriate to protect 
the life of any person, and he may, if he deems it appropriate, supervise 
and direct the rescue and recovery activity in such mine. 

(f ) In the event of any accident occurring in a coal or other mine, an 
authorized representative of the Secretary, when present, may issue 
such orders as he deems appropriate to insure the safety of any person 
in the coal or other mine, and the operator of such mine shall obtain the 
approval of such representative, in consultation with appropriate 
State representatives, when feasible, of any plan to recover any person 
in the mine or to recover the mine or to return affected areas of the mine 
to normal. 

(g) Whenever a representative of the miners has reasonable grounds 
to believe that a violation of a mandatory health or safety standard 
exists, or an imminent danger exists, such representative shall have a 



20-040 O - 78 - 26 



396 



41 



height to obtain an immediate inspection by giving notice to the Sec- 
retary or his authorized representative of such violation or danger. 
Any such notice shall be reduced to writing, signed by the representa- 
tive of the miners, and a copy shall be provided the operator or his 
agent no later than at the time of inspection, except that, upon the 
request of the person giving such notice, his name and the names of 
individual miners referred to therein shall not appear in such copy. 
Upon receipt of such notification, a special inspection shall be made 
as soon as possible to determine if such violation or danger exists in 
accordance with the provisions of this title. 

(h) At the commencement of any inspection of a coal or other mine 
by an authorized representative of the Secretary, the authorized repre- 
sentative of the miners at the mine at the time of such inspection shall 
be given an opportunity to accompany the authorized representative of 
the Secretary on such inspection. 

(i) Whenever the Secretary finds that a mine liberates excessive 
quantities of methane or other explosive gas during its operations, 
or that a methane or other gas ignition or explosion has occurred in 
such mine which resulted in death or serious injury at any time during 
the previous five years, or that there exists in such mine other especially 
hazardous conditions, he shall provide a minimum of one spot inspec- 
tion by his authorized representative of all or part of such mine during 
every five working days at irregular intervals. 

FINDINGS, NOTICES, AND ORDERS 

Sec. 104. (a) If, upon any inspection of a coal or other mine, an 
authorized representative ot the Secretary finds that an imminent 
danger exists, such representative shall determine the area throughout 
which such danger exists, and thereupon shall issue forthwith an order 
requiring the operator of the mine or his agent to cause immediately 
all persons, except those referred to in subsection (d) of this section, 
to be withdrawn from, and to be prohibited from entering, such area 
until an authorized representative of the Secretary determines that 
such imminent danger no longer exists. 

(b) Except as provided in subsection (i) of this section, if, upon 
any inspection of a coal or other mine, an authorized representative of 
the Secretary finds that there has been a violation of any mandatory 
health or safety standard but the violation has not created an imminent 
danger, he shall issue a notice to the operator or his agent fixing a 
reasonable time for the abatement of the violation. If, upon the expira- 
tion of the period of time as originally fixed or subsequently extended, 
an authorized representative of the Secretary finds that the violation 
has not been totally abated, and if he also finds that the period of time 
should not be further extended, he shall find the extent of the area 
affected by the violation and shall promptly issue an order requiring 
the operator of such mine or his agent to cause immediately all per- 
sons, except those referred to in subsection (d) of this section, to be 
withdrawn from, and to be prohibited from entering, such area until 
an authorized representative of the Secretary determines that the 
violation has been abated. 

(c) ( 1 ) If , upon any inspection of a coal or other mine, an authorized 
representative of the Secretary finds that there has been a violation 



397 



42 



of .any mandatory health or safety standard, and if he- also finds that, 
"while the conditions created by such violation do not cause imminent 
danger, such violation is of such nature as could significantly and sub- 
stantially contribute to the cause and effect of a mine safety or health 
hazard, and if he finds such violation to be caused by an unwarrantable 
failure of such operator to comply with such mandatory health or 
safety standards, he shall include such finding in any notice given to 
the operator under this Act. If, during the same inspection or any 
subsequent inspection of such mine within ninety days after the issu- 
ance of such notice, an authorized representative of the Secretary 
finds another violation of any mandatory health or safety standard 
m\d finds such violation to be also caused by an unwarrantable fail- 
ure of such operator to so comply, he shall forthwith issue an order 
requiring the operator to cause all persons in the area affected by such 
violation, except those persons referred to in subsection (d) of this 
section, to be withdrawn from, and to be prohibited from entering, 
such area until an authorized representative of the Secretary deter- 
mines that such violation has been abated. 

(2) If a withdrawal order with respect to any area in a mine has 
been issued pursuant to paragraph (1) of this subsection, a with- 
drawal order shall promptly be issued by an authorized representative 
of the Secretary who finds upon any subsequent inspection the exist- 
ence in such mine of violations similar to those that resulted in the 
issuance of the withdrawal order under paragraph (1) of this sub- 
section until such time as an inspection of such mine discloses no 
similar violations. Following an inspection of such mine which dis- 
closes no similar violations, the provisions of paragraph (1) of this 
subsection shall again be applicable to that mine. 

(d) The following persons shall not be required to be withdrawn 
from, or prohibited from entering, any area of the coal or other mine 
subject to an order issued under this section: 

(1) any person whose presence in such area is necessary, in the 
judgment of the operator or an authorized representative of the 
Secretary, to eliminate the condition described in ; the order ; 

(2) any public official whose official duties require him to enter 
such area ; 

(3) any representative of the miners in such mine who is, in the 
judgment of the operator or an authorized representative of the 
Secretary, qualified to make coal or other mine examinations or 
who is accompanied by such a person and whose presence in such 
area is necessary for the investigation of the conditions described 
in the order ; and 

(4) any consultant to any of the foregoing. 

(e) Notices and orders issued pursuant to this section shall contain 
a detailed description of the conditions or practices which cause and 
constitute an imminent danger or a violation of any mandatory health 
or safety standard and, where appropriate, a description of the area 
of the coal or other mine from which persons must be withdrawn and 
prohibited from entering. 

(f ) Each notice or order issued under this section shall be given 
promptly to the operator of the coal or other mine or his -agent by an 
Authorized representative of the Secretary issuing such notice or order, 



398 



43 



and all such notices and orders shall be in writing And shall be signed 
by such representative. 

(g) A notice or order issued pursuant to this section, except an 
order issued under subsection (h) of this section, may be modified or 
terminated by an authorized representative of the Secretary. 

(h)(1) If, upon any inspection of a coal or other mine, an author- 
ized representative of the Secretary finds (A) that conditions exist 
therein which have not yet resulted in an imminent danger, (B) that 
such conditions cannot be effectively abated through the use of existing 
technology, and (C) that reasonable assurance cannot be provided 
that the continuance of mining operations under such conditions will 
not result in an imminent danger, he shall determine the area through- 
out which such conditions exist, and thereupon issue a notice to the 
operator of the mine or his agent of such conditions, and shall file a 
copy thereof, incorporating his findings therein, with the Secretary 
and with the representative of the miners of such mine. Upon receipt 
of such copy, the Secretary shall cause such further investigation to 
be made as he deems appropriate, including an opportunity for the 
operator or a representative of the miners to present information 
relating to such notice. 

(2) Upon the conclusion of such investigation and an opportunity 
for a public hearing upon request by any interested party, the Secre- 
tary shall make findings of fact, and shall by decision incorporating 
such findings therein, either cancel the notice issued under this sub- 
section or issue an order requiring the operator of such mine to cause 
all persons in the area affected, except those persons referred to in 
subsection (d) of this section, to be withdrawn from, and be pro- 
hibited from entering, such area until the Secretary, after a public 
hearing affording all interested persons an opportunity to present 
their views, determines that such conditions have been abated. Any 
hearing under this paragraph shall be of record and shall be subject 
to section 554 of title 5 of the United States Code. 

(i) If, based upon samples taken and analyzed and recorded pur- 
suant to section 202(a) of this Act, or samples taken during an inspec- 
tion by an authorized representative of the Secretary, the applicable 
limit on the concentration of respirable dust required to be maintained 
under this Act is exceeded and thereby violated, the Secretary or his 
authorized representative shall issue a notice fixing a reasonable time 
for the abatement of the violation. During such time, the operator of 
the mine shall cause samples described in section 202(a) of this Act 
to be taken of the affected area during each production shift. If, upon 
the expiration of the period of time as originally fixed or subsequently 
extended, the Secretary or his authorized representative finds that 
the period of time should not be further extended, he shall find the 
extent of the area affected by the violation and shall promptly issue 
an order requiring the operator of such mine or his agent to cause 
immediately all persons, except those referred to in subsection (d) of 
this section, to be withdrawn from, and to be prohibited from enter- 
ing, such area until the Secretary or his authorized representative has 
reason to believe, based on actions taken by the operator, that such 
limit will be complied with upon the resumption of production in 
such mine. As soon as possible after an order is issued, the Secretary, 



399 



44 



upon request of the operator, shall dispatch to the mine involved a 
person or team of persons, to the extent such persons are available, 
who are knowledgeable in the methods and means of controlling and 
reducing respirable dust. Such person or team of persons shall remain 
at the mine involved for such time as they shall deem appropriate to 
assist the operator in reducing respirable dust concentrations. While 
at the mine, such persons may require the operator to take such actions 
as they deem appropriate to insure the health of any person in the 
coal or other mine. 

REVIEW BY THE SECRETARY 

Sec. 105. (a) (1) An operator issued an order pursuant to the pro- 
visions of section 104 of this title, or any representative of miners 
in any mine affected by such order or by any modification or termina- 
tion of such order, may apply to the Secretary for review of the order 
within thirty days of receipt thereof or within thirty days of its modi- 
fication or termination. An operator issued a notice pursuant to section 
104(b) or (i) of this title, or any representative of miners in any 
mine affected by such notice, may, if he believes that the period of 
time fixed in such notice for the abatement of the violation is unreason- 
able, apply to the Secretary for review of the notice within thirty 
days of the receipt thereof. The applicant shall send a copy of such 
application to the representative of miners in the affected mine, or the 
operator, as appropriate. Upon receipt of such application, the Secre- 
tary shall cause such investigation to be made as he deems appropriate. 
Such investigation shall provide an opportunity for a public hearing, 
at the request of the operator or the representative of miners in such 
mine, to enable the operator and the representative of miners in such 
mine to present information relating to the issuance and continuance 
of such order or the modification or termination thereof or to the time 
fixed in such notice. The filing of an application for review under this 
subsection shall not operate as a stay of any order or notice. 

(2) The operator and the representative of the miners shall be given 
written notice of the time and place of the hearing at least five days 
prior to the hearing. Any such hearing shall be of record and shall be 
subject to section 554 of title 5 of the United States Code. 

(b) Upon receiving the report of such investigation, the Secretary 
shall make findings of fact, and he shall issue a written decision, 
incorporating therein an order vacating, affirming, modifying, or ter- 
minating the order, or the modification or termination of such order, 
or the notice, complained of and incorporate his findings therein. 

(c) In view of the urgent need for prompt decision of matters sub- 
mitted to the Secretary under this section, all actions which the Secre- 
tary takes under this section shall be taken as promptly as practicable, 
consistent with adequate consideration of the issues involved. 

(d) Pending completion of the investigation required by this sec- 
tion, the applicant may file with the Secretary a written request that 
the Secretary grant temporary relief (1) from any modification or 
termination of any order, or (2) from any order issued under section 
104 of this title, except an order issued under section 104(a) of this 
title, together with a detailed statement giving reasons for granting 



400 



45 



such relief. The Secretary may grant such relief, under such conditions 
as he may prescribe, if — 

(1) a hearing has been held in which all parties were given an 
opportunity to be heard ; 

(2) the applicant shows that there is substantial likelihood 
that the findings of the Secretary will be favorable to the appli- 
cant; and 

(3) such relief will not adversely affect the health and safety 
of miners in the coal or other mine. 

No temporary relief shall be granted in the case of a notice issued 
under section 104(b) or (i) of this title. 

JUDICIAL REVIEW 

Sec. 106. (a) Any order or decision issued by the Secretary or the 
Panel under this Act, except an order or decision under section 109(a) 
of this Act, shall be subject to judicial review by the United States 
court of appeals for the circuit in which the affected mine is located, 
or the United States Court of Appeals for the District of Columbia 
Circuit, upon the filing of such court within thirty days from the date 
of such order or decision of a petition by any person aggrieved by 
the order or decision praying that the order or decision be modified 
or set aside in whole or in part, except that the court shall not consider 
such petition unless such person has exhausted the administrative 
remedies available under this Act. A copy of the petition shall forth- 
with be sent by registered or certified mail to the other party and to 
the Secretary or the Panel, and thereupon the Secretary or the Panel 
shall certify and file in such court the record upon which the order or 
decision complained of was issued, as provided in section 2112 of title 
28, United States Code. 

(b) The court shall hear such petition on the record made before 
the Secretary or the Panel. The findings of the Secretary or the Panel, 
if supported by substantial evidence on the record considered as a 
whole, shall be conclusive. The court may affirm, vacate, or modify any 
order or decision or may remand the proceedings to the Secretary or 
the Panel for such further action as it may direct. 

(c) (1) In the case of a proceeding to review any order or decision 
issued by the Secretary under this Act, except an order or decision 
pertaining to an order issued under section 104(a) of this title or an 
order or decision pertaining to a notice issued under section 104 (b) 
or (i) of this title, the court may, under such conditions as it may 
prescribe, grant such temporary relief as it deems appropriate pend- 
ing final determination of the proceeding if — 

(A) all parties to the proceeding have been notified and given 
an opportunity to be heard on a request for temporary relief ; 

(B) the person requesting such relief shows that there is a sub- 
stantial likelihood that he will prevail on the merits of the final 
determination of the proceeding ; and 

(C) such relief will not adversely affect the health and safety 
of miners in the coal or other mine. 

(2) In the case of a proceeding to review any order or decision 
issued by the Panel under this Act, the court may, under such condi- 



401 



46 



tions as it may prescribe, grant such temporary relief as it deems 
appropriate pending final determination of the proceeding if— 

(A) all parties to the proceeding have been notified and given 
an opportunity to be heard on a request for temporary relief ; and 

(B) the person requesting such relief shows that there is a sub- 
stantial likelihood that he will prevail on the merits of the final 
determination of the proceeding. 

(d) The judgment of the court shall be subject to review only by 
the Supreme Court of the United States upon a writ of certiorari or 
certification as provided in section 1254 of title 28, United States 
Code. 

(e) The commencement of a proceeding under this section shall not, 
unless specifically ordered by the court, operate as a stay of the order 
or decision of the Secretary or the Panel. 

(f) Subject to the direction and control of the Attorney General, 
as provided in section 507(b) of title 28 of the United States Code, 
attorneys appointed by the Secretary may appear for and represent 
him in any proceeding instituted under this section. 

POSTING OF NOTICES, ORDERS, AND DECISIONS 

Sec. 107. (a) At each coal or other mine there shall be maintained an 
office with a conspicuous sign designating it as the office of the mine, 
and a bulletin board at such office or at some conspicuous place near an 
entrance of the mine, in such manner that notices, orders, and decisions 
required by law or regulation to be posted on the mine bulletin board 
may be posted thereon, be easily visible to all persons desiring to read 
them, and be protected against damage by weather and against unau- 
thorized removal. A copy of any notice, order, or decision required by 
this title to be given to an operator shall be delivered to the office of 
the affected mine, and a copy shall be immediately posted on the bul- 
letin board of such mine by the operator or his agent. 

(b) The Secretary shall cause a copy of any notice, order, or deci- 
sion required by this Act to be given to an operator to be mailed im- 
mediately to a representative of the miners in the affected mine, and to 
the public official or agency of the State charged with administering 
State laws, if any, relating to health or safety in such mine. Such 
notice, order, or decision shall be available for public inspection. 

(c) In order to insure prompt compliance with any notice, order, or 
decision issued under this Act, the authorized representative of the 
Secretary may deliver such notice, order, or decision to an agent of 
the operator and such agent shall immediately take appropriate meas- 
ures to insure compliance with such notice, order, or decision. 

(d) Each operator of a coal or other mine shall file with the Secretary 
the name and address of such mine and the name and address of the per- 
son who controls or operates the mine. Any revisions in such names 
or addresses shall be promptly filed with the Secretary. Each operator 
of a coal or other mine shall designate a responsible official at such time 
asthe principal officer in charge of health and safety at such mine and 
such official shall receive a copy of any notice, order, or decision issued 
under this Act affecting such mine. In any case, where the coal or other 
mme is subject to the control of anv person not directly involved in the 
daily operations of the coal or other mine, there shall'be filed with the 



402 



47 



Secretary the name and address of such person and the name and ad- 
dress of a principal official of such person who shall have overall re- 
sponsibility for the conduct of an effective health and safety program 
at any coal or other mine subject to the control of such person and such 
official shall receive R copy of any notice, order, or decision issued af- 

ng any such mine. The mere designation of a health and safety 
official under this subsection shall not be construed as making such offi- 

- abject to any penalty under this Act. 



INJUNCTIONS 



Si C 108. The Secretary may institute a civil action for relief, in- 
cluding a permanent or temporary injunction, restraining order, or any 
other appropriate order in the district court of the United States for 
the district in which a coal or other mine is located or in which the oper- 
ator of such mine has his principal office, whenever such operator or his 
agent (a) violates or fails or refuses to comply with any order or 
decision issued under this Act, or (b) interferes with, hinders, or 
delays the Secretary or his authorized representative, or the Secretary 
of Health, Education, and Welfare or his authorized representative, 
in carrying out the provisions of this Act, or (c) refuses to admit such 
representatives to the mine, or (d) refuses to permit the inspection 
of the mine, or the investigation of an accident or occupational disease 
occurring in, or connected with, such mine, or (e) refuses to furnish 
any information or report requested by the Secretary or the Secretary 
of Health, Education, and Welfare in furtherance of the provisions 
of tii or (f) refuses to permit access to, and copying of, such 

records as the Secretary or the Secretary of Health, Education, and 
Welfare determines necessary in carrying out the provisions of this 
Act. Each court shall have jurisdiction to provide such relief as may 
be appropriate. Temporary restraining orders shall be issued in ac- 
cordance with Rule 65 of the Federal Rules of Civil Procedure, as 
amended, except that the time limit in such orders, when issued with- 
out notice, shall be seven days from the date of entry. Except as other- 
wise provided herein, any relief granted by the court to enforce an 
order under clause (a) of this section shall continue in effect until 
the completion or final termination of all proceedings for review of 
such order under this title, unless prior thereto, the district court 
granting such relief sets it aside or modifies it. In actions under this 
section, subject to the direction and control of the Attorney General, 
as provided in section 507(b) of title 28 of the United States Code, 
attorneys appointed by the Secretary may appear for and represent 
him. In any action instituted under this section to enforce an order 
or decision issued by the Secretary after a public hearing in accord- 
ance with section 554 of title 5 of the United States Code, the findings 
of the Secretary, if supported by substantial evidence on the record 
considered as a whole, shall be conclusive. 



PENALTIES 



Sec. 109. (a) (1) The operator of a coal or other mine in which a 
violation occurs of a mandatory health or safety standard or who 
violates any other provision of this Act, except the provisions of title 4, 
shall be assessed a civil penalty by the Secretary under paragraph (3) 



403 



48 



of this subsection which penalty shall not be more than $10,000 for each 
such violation. Each occurrence of a violation of a mandatory health 
or safety standard may constitute a separate offense. In determining 
the amount of the penalty, the Secretary shall consider the operators 
history of previous violations, the appropriateness of such penalty to 
the size of the business of the operator charged, whether the operator 
was negligent, the effect on the operator's ability to continue in busi- 
ness, the gravity of the violation, and the demonstrated good faith of 
the operator charged in attempting to achieve rapid compliance after 
notification of a violation. 

(2) Any miner who willfully violates the mandatory safety stand- 
ards relating to smoking or the carrying of smoking materials,. 
matches, or lighters shall be subject to a civil penalty assessed by the 
Secretary under paragraph (3) of this subsection, which penalty 
shall not be more than $250 for each occurrence of such violation. 

(3) A civil penalty shall be assessed by the Secretary only after the 
person charged with a violation under this Act has been given an 
opportunity for a public hearing and the Secretary has determined, 
by decision incorporating his findings of fact therein, that a viola- 
tion did occur, and the amount of the penalty which is warranted, 
and incorporating, when appropriate, an order therein requiring that 
the penalty be paid. Where appropriate, the Secretary shall consoli- 
date such 'hearings with other proceedings under section 105 of this 
title. Any hearing under this section shall be of record and shall be 
subject to section 554 of title 5 of the United States Code. 

(4) If the person against whom a civil penalty is assessed fails to 
pay the penalty within the time prescribed in such order, the Secretary 
shall file a petition for enforcement of such order in any appropriate 
district court of the United States. The petition shall designate the 
person against whom the order is sought to be enforced as the respond- 
ent. A copy of the petition shall forthwith be sent by registered or 
certified mail to the respondent and to the representative of the miners' 
in the affected mine or the operator, as the case may be, and thereupon 
the Secretary shall certify and file in such court the record upon which 
such order sought to be enforced was issued. The court shall have 
jurisdiction to enter a judgment enforcing, modifying, and enforcing 
as so modified, or setting aside in whole or in part the order and 
decision of the Secretary or it may remand the proceedings to the 
Secretary for such further action as it may direct. The court shall con- 
sider and determine de novo all relevant issues, except issues of fact 
which were or could have been litigated in review proceedings before 
a court of appeals under section 106 of this Act, and upon the reouest 
of the respondent, such issues of fact which are in dispute shall be 
submitted to a jury. On the basis of the jury's findings, the court shall 
determine the amount of the penalty to be imposed. Subiect to the 
direction and control of the Attornev General, as provided in sec- 
tion 507(b) of title 28 of the United States Code, attorneys appointed 
by the Secretary may appear for and represent him in any action to 
enforce an order assessing civil penalties under this paragraph. 

(b) Any operator who willfully violates a mandatory health or 
safety standard, or knowingly violates or fails or refuses to comply 



404 



49 



-svith any order issued under section 104 of this title, or any order 
incorporated in a final decision issued under this title, except an order 
incorporated in a decision under subsection (a) of this section or 
section 110(b) (2) of this title, shall, upon conviction, be punished by 
a fine of not more than $25,000, or by imprisonment for not more than 
one year, or by both, except that if the conviction is for a violation 
committeed after the first conviction of such operator under this Act, 
punishment shall be by a fine of not more than $50,000, or by imprison- 
ment for not more than five years, or by both. 

(c) Whenever a corporate operator violates a mandatory health or 
safety standard or knowingly violates or fails or refuses to comply 
with any order issued under this Act or any order incorporated in a 
final decision issued under this Act, except an order incorporated in 
a decision issued under subsection (a) of tins section or section 110 
(b) (2) of this title, any director, officer, or agent of such corporation 
who knowingly authorized, ordered, or carried out such violation, fail- 
ure, or refusal shall be subject to the same civil penalties, fines, and 
imprisonment that may be imposed upon a person under subsection 
(a) and (b) of this section. 

(d) Whoever knowingly makes any false statement, representation, 
or certification in any application, record, report, plan, or other docu- 
ment filed or required to be maintained pursuant to this Act or any 
order or decision issued under this Act shall, upon conviction, be pun- 
ished by a fine of not more than $10,000, or by imprisonment for not 
more than six months, or by both. 

(e) Whoever knowingly distributes, sells, offers for sale, introduces, 
or delivers in commerce any equipment for use in a coal or other mine, 
including, but not limited to. components and accessories of such 
equipment, which is represented as complying with the provisions of 
this Act, or with any specification or regulations of the Secretary appli- 
cable to such equipment, and which does not so comply, shall, upon 
conviction, be subject to the same fine and imprisonment that may be 
imposed upon a person under subsection (d) of this section. 

ENTITLEMENT OF MIXERS 

Sec. 110. (a) If a coal or other mine or area of a coal or other mine is 
closed by an order issued under section 104 of this title, all miners work- 
ing during the shift when such order was issued who are idled by such 
order shall be entitled to full compensation by the operator at their reg- 
ular rates of pay for the period the}- are idled, but for not more than 
the balance of such shift. If such order is not terminated prior to the 
next working shift, all miners on that shift who are idled by such order 
shall be entitled to full compensation by the operator at their regular 
rates of pay for the period they are idled, but for not more than four 
hours of such shift. If a coal or other mine or area of a coal or other 
mine is closed by an order issued under section 104 of this title for an 
unwarrantable failure of the operator to comply with any health or 
safety standard, all miners who are idled due to such order shall be 
fully compensated, after all interested parties are given an opportunity 
for a public hearing on such compensation and after such order is final, 
by the operator for lost time at their regular rates of pay for such time 



405 



50 



as the miners are idled by such closing, or for one week, whichever is 
the lesser. Whenever an operator violates or fails or refuses to comply 
with any order issued under section 104 of this Act, all miners em- 
ployed at the affected mine who would be withdrawn from, or pre- 
vented from entering, such mine or area thereof as a result of such 
order shall be entitled to full compensation by the operator at their 
regular rates of pay, in addition to pay received for work performed 
after such order was issued, for the period beginning when such order 
was issued and ending when such order is complied with, vacated, or 
terminated. 

(b) (1) No person shall discharge or in any other way discriminate 
against or cause to be discharged or discriminated against any miner 
or any authorized representative of miners by reason of the fact that 
such miner or representative (A) has notified the Secretary or his 
authorized representative of any alleged violation or danger, (B) has 
filed, instituted, or caused to be filed or instituted any proceeding 
under this Act, or (C) has testified or is about to testify in any pro- 
ceeding resulting from the administration or enforcement of the 
provisions of this Act. 

(2) Any miner or a representative of miners who believes that he 
has been discharged or otherwise discriminated against by any person 
in violation of paragraph (1) of this subsection may, within thirty 
days after such violation occurs, apply to the Secretary for a review 
of such alleged discharge or discrimination. A copy of the application 
shall be sent to such person who shall be the respondent. Upon receipt 
of such application, the Secretary shall cause such investigation to be 
made as he deems appropriate. Such investigation shall provide an 
opportunity for a public hearing at the request of any party to enable 
the parties to present information relating to such violation. The 
parties shall be given written notice of the time and place of the hear- 
ing at least five days prior to the hearing. Any such hearing shall be 
of record and shall be subject to section 554 of title 5 of the United 
States Code. Upon receiving the report of such investigation, the 
Secretary shall make findings of fact. If he finds that such violation 
did occur, he shall issue a decision, incorporating an order therein, 
requiring the person committing such violation to take such affirma- 
tive action to abate the violation as the Secretary deems appropriate, 
including, but not limited to, the rehiring or reinstatement of the 
miner or representative of miners to his former position with back 
pay. If he finds that there was no such violation, he shall issue an order 
denying the application. Such order shall incorporate the Secretary's 
findings therein. Any order issued by the Secretary under this para- 
graph shall be subject to judicial review in accordance with section 
106 of this Act. Violations by any person of paragraph (1) of this 
subsection shall be subject to the provisions of sections 108 and 109(a) 
of this title. 

(3) Whenever an order is issued under this subsection, at the request 
of the applicant, a sum equal to the aggregate amount of all costs and 
expenses (including the attorney's fees) as determined by the Secre- 
try to have been reasonably incurred by the applicant for, or in con- 
nection with, the institution and prosecution of such proceedings, shall 
be assessed against the person committing such violation. 



406 



51 



REPORTS 



Sec. 111. (a) All accidents, including unintentional roof fulls 
(except in any abandoned panels or in areas which are inaccessible 
or unsafe for inspections), shall he investigated by the operator or his 
agent to determine the cause and the means of preventing a recurrence. 
Records of such accidents, roof falls, and investigations shall he kept 
and \)io information shall he made available to the Secretary or his 
authorized representative and the appropriate State agency. Such 
records shall be open for inspection by interested persons. Such rec- 
ords shall include man-hours worked and shall be reported for periods 
determined by the Secretary, but at least annually. 

(b) In addition to such records as are specifically required by this 
Act, every operai <>al or other mine s>iall establish and maintain 

such records, make such reports, and provide such information, as the 
Secretary may reasonably require from time to time to enable him to 
perform his functions under this Act. The Secretary is authorized to 
compile, analyze, and publish, either in summary or detailed form, 
such reports or information so obtained. Except to the extent other- 
wise specifically provided by this Act. all records, information, re- 
ports, findings, notices, orders, or derisions required or issued pur- 
suant to or under this Act may be published from time to time, may 
be released to any interested person, and shall be made available for 
public inspection. 



TITLE V— ADMINISTRATION- 
RESEARCH 

Sec. 501. (a) The Secretary of the I ntrr'tor and the Secretary of 
Health, Education, and Welfare, as appropriate, shall conduct such 
studies, research, experiments, and demonstrations as may be 
appropriate — 

(1) to improve working conditions and practices in coal or 
other mines, and to prevent accidents and occupational diseases 
originating in the coal or other mining industry; 

(2) to develop new or improved methods of recovering persons 
in coal or other mines after an accident; 

(3) to develop new or improved means and methods of com- 
munication from the surface to the underground area of a coal or 
other mine ; 

(4) to develop new or improved means and methods of reduc- 
ing concentrations of respirable dust in the mine atmosphere of 
active workings of the coal or other mine ; 

(5) to develoo epidemiological information to (A) identify 
and define positive factors involved in occupational diseases of 
miners, (B) provide information on the incidence and prevalence 
of pneumoconiosis and other respiratory ailments of miners, and 
(C) improve mandatory health standards; 

(6) to develop techniques for the prevention and control of 
occupational diseases of miners, including tests for hypersuscep- 
tibility and early detection ; 



407 



52 



(7) to evaluate the effect on bodily impairment and occupa- 
tional disability of miners afflicted with an occupational disease ; 

(8) to prepare and publish from time to time, reports on all 
significant aspects of occupational diseases of miners as well as 
on the medical aspects of injuries, other than diseases, which are 
revealed by the research carried on pursuant to this subsection; 

(9) to study the relationship between coal or other mine en- 
vironments and occupational diseases of miners; 

(10) to develop new and improved underground equipment and 
other sources of power for such equipment which will provide 
greater safety ; and 

(11) for such other purposes as they deem necessary to carry 
out the purposes of this Act. 

(b) Activities under this section in the field of coal and other mine 
health shall be carried out by the Secretary of Health, Education, and 
Welfare through the National Institute for Occupational Safety and 
Health established under the Occupational Safety and Health Act of 
1970; and activities under this section in the field of coal or oilier mine 
safety shall be carried out by the Secretary of the Interior in coordina- 
tion with the Secretary. 

(c) In carrying out the provisions for research, demonstrations, ex- 
periments, studies, training, and education under this section and 
sections 301(b) and 502(a) of this Act, the Secretary and the Secre- 
tary of Health, Education, and Welfare may enter into contracts with, 
and make grants to, public and private agencies and organizations 
and individuals. No research, demonstrations, or experiments shall be 
carried out, contracted for, sponsored, cosponsored, or authorized 
under authority of this Act, unless all information, uses, products, 
processes, patents, and other developments resulting from such re- 
search, demonstrations, or experiments will (with such exception and 
limitation, if any, as the Secretary or the Secretary of Health, Edu- 
cation, and Welfare may find to be necessary in the public interest) 
be available to the general public. 

(d) The Secretary of Health, Education, and Welfare shall also 
conduct studies and research into matters involving the protection of 
life and the prevention of diseases in connection with persons, who 
although not miners, work with, or around the products of, coal or 
other mines in areas outside of such mines and under conditions which 
may adversely affect the health and well-being of such persons. 



TRAINING AND EDUCATION 

Sec. 502. (a) The Secretary shall expand programs for the educa- 
tion and training of operators and agents thereof, and miners in — 

(1) the recognition, avoidance, and prevention of accidents or 
unsafe or unhealthful working conditions in coal or other mines ; 
and 

(2) in the use of flame safety lamps, permissible methane detec- 
tors, and other means approved by the Secretary for detecting 
methane and other explosive gases accurately. 

(b) The Secretary shall, to the greatest extent possible, provide 
technical assistance to operators in meeting the requirements of this 



408 



53 



Act and in further improving the health and safety conditions and 
practices in coal or other mines. 

(c)(1) The National Mine, Health and Safety Academy shall be 
maintained as an agency of the Department of tlie Interior, The 
Academy shall be responsible for the training of mine safety and 
health inspectors vmder section 505 of this Act, and in training of 
technical support personnel of the Mine Safety a/ul Health Adminis- 
tration established under section 302 of the Federal Mine Safety and 
Health Amendments Act of 1977 ; and for any other training pro- 
grams for mine inspectors* mining personnel* or otlier persons as the 
Secretaries of Labor and 1 nt< Hot mall designate. In performing this 
function, the Academy shall liave the authority to enter into coopera- 
tive educational and trowing agreements with educational institutions, 
State governments^ labor arc Otis, and mine operators and re- 

lated industries* Such training shall be conducted by the Academy 
in accordance with ciirricuhim needs and assignment of instructional 
personnel established by the tu 

(2) In performing its function pursuant to this section, the National 
Mine Health and Safety Academy shall use the facilities and per- 
sonnel of the Department of the Interior, and such other personnel 
as shall be mutually agreed upon by thi Secretaries of Labor and 
Interior. The Secretary of the Interior, upon request by the Academy, 
shall appoint or assign to the A cademy such officers and employees as 
the Director of the Academy deems necessary for the perfomwnce of 
the duties and functions of the Academy. 

(3) The Secretary/ of the, Interior shall conduct his safety research 
responsibilities under section. SOI of this Act in coordination with the 
Secretary of Labor* and the Secretaries of Labor and the Interior 
are authorized to enter into contractual or other agreements for the 
performance of such safety related research. 

A-SISTAXCE TO STATES 

Sec. 503. (a) The Secretary, in coordination with the Secretary of 
Health, Education, and Welfare and the Secretary of Labor, is 
authorized to make grants in accordance with an application approved 
under this section to any State in which coal or other mining takes 
place — 

(1) to assist such State in developing and enforcing effective 
coal or other mine health and safety laws and regulations consist- 
ent with the provisions of section 506 of this Act ; 

(2) to improve State workmen's compensation and occupa- 
tional disease laws and programs related to coal or otlier mine 
employment; and 

(3) to promote Federal-State coordination and cooperation 
in improving the health and safety conditions in the coal or other 
mines. 

(b) The Secretary shall approve any application or any modifica- 
tion thereof, submitted under this section by a State, through its offi- 
cial coal or other mine inspection or safety agency, which — 

(1) sets forth the programs, policies, and methods to be fol- 
lowed in carrying out the application in accordance with the pur- 
poses of subsection (a) of this section ; 



409 



54 



(2) provides research and planning studies to carry out plans 
•designed to improve State workmen's compensation and occupa- 
tional disease laws and programs, as they relate to compensation 
to miners for occupationally caused diseases and injuries arising 
out of employment in any coal or other mine ; 

(3) designates such State coal or other mine inspection or safety 
agency as the sole agency responsible for administering grants 
under this section throughout the State, and contains satisfactory 
evidence that such agency will have the authority to carry out 
the purposes of this section ; 

(4) gives assurances that such agency has or will employ an 
adequate and competent staff of trained inspectors qualified 
under the laws of such State to make coal or other mine inspec- 
tions within such State ; 

(5) provides for the extension and improvement of the State 
program for the improvement of coal or other mine health and 
safety in the State, and provides that no advance notice of an in- 
spection will be provided anyone ; 

(6) provides such fiscal control and fund accounting proce- 
dures as may be appropriate to assure proper disbursement and 
accounting of grants made to the States under this section; 

(7) provides that the designated agency will make such reports 
to the Secretary in such form and containing such information as 
the Secretary may from time to time require; 

(8) contains assurances that grants provided under this sec- 
tion will supplement, not supplant, existing State coal mine health 
and safety programs ; and 

(9) meets additional conditions which the Secretary may pre- 
scribe in furtherance of, and consistent with, the purposes of this 
section. 
******* 

(f) The Secretary shall cooperate with such State in carrying out 
the application or modification thereof and shall, as appropriate, 
develop and, where appropriate, construct facilities for, and finance a 
program of, training of Federal and State inspectors jointly. The 
Secretary shall also cooperate with such State in establishing a system 
by which State and Federal inspection reports of coal or other mines 
located in the State are exchanged for the purpose of improving health 
and safety conditions in such mines. 

(g). The amount granted to any coal or other mining State for a 
fiscal year under this section shall not exceed 80 per centum of the 
amount expanded by such State in such year for carrying out such 
application. 



inspectors; qualifications; training 

Sec. 505. The Secretary may, subject to the civil service laws, 
appoint such employees as he deems requisite for the administration 
of this Act and prescribe their duties. Persons appointed as author- 
ized representatives of the Secretary shall be qualified by practical 



410 



55 



experience in [the mining of coal] mining or by experience as a prac- 
tical mining engineer or by education: Provided, however, That, to 
the maximum extent feasible, in the selection of persons for appoint- 
ment as mine inspectors, no person shall be so selected unless he has 
the basic qualification of at least five years practical mining experi- 
ence and tn assigning mine inspectors to the inspection and investi- 
gation of individual mines, due consideration shall be given to the 
extent possible to their previous experience in the particular type of 
mining operation where such inspections are to be made. Persons 
appointed to assist such representatives in the taking of samples of 
respirable dust for the purpose of enforcing title II of this Act shall 
be qualified by training, experience, or education. The provisions of 
section 201 of the Revenue and Expenditure Control Act of 1968 (82 
Stat. 251, 1270) shall not apply with respect to the appointment of 
such authorized representatives of the Secretary or to persons 
appointed to assist such representatives and to carry out the pro- 
visions of this Act, and, in applying the provisions of such section 
to other agencies under the Secretary and to other agencies of the 
Government, such appointed persons shall not l>e taken into account. 
Such persons shall be adequately trained by the Secretary. The Secre- 
tary shall develop programs with educational institutions and oper- 
ators designed to enable persons to qualify for positions in the 
administration of this Act. In select in g persons and training and 
retraining persons to carry out the provisions of this Act, the Secre- 
tary shall work with appropriate educational institutions, operators, 
and representatives of miners in developing and maintaining adequate 
programs for the training and continuing education of persons, par- 
ticularly inspectors, and where appropriate, the Secretary snail 
cooperate with such institutions in carrying out the provisions of 
this section by providing financial and technical assistance to such 
institutions. 

EFFECT ON STATE LAWS 

Sec. 506. (a) No State law in effect on the date of enactment of this 
Act or which, may become effective thereafter shall be superseded by 
any provision of this Act or order issued or any mandatory health or 
safety standard, except insofar as such State law is in conflict with this 
Act or with any order issued or any mandatory health or safety 
standard. 

(b) The provisions of any State law or regulation in effect upon the 
operative date of this Act, or which may become effective thereafter, 
which provide for more stringent health and safety standards applica- 
ble to coal or other mines than do the provisions of this Act or any 
order issued or any mandatory health or safety standard shall not 
thereby be construed or held to be in conflict with this Act. The pro- 
visions of any State law or regulation in effect on the date of enact- 
ment of this Act, or which may become effective thereafter, which 
provide for health and safety standards applicable to coal or other 
mines for which no provision is contained in this Act or in any order 
issued or any mandatory health or safety standard, shall not be held 
to be in conflict with this Act. 



411 



56 



REPORTS 



Seo. 511. (a) Within one hundred and twenty days following the 
convening of each session of Congress the Secretary shall submit 
through the President to the Congress and to the Office of Science and 
Technology an annual report upon the subject matter of this Act, the 
progress concerning the achievement of its purposes, the needs and 
requirements in the field of coal or other mine health and safety, the 
amount and status of each loan made pursuant to this Act, a descrip- 
tion and the anticipated cost of each project and program he has 
undertaken under sections 301(b) and 501, and any other relevant 
information, including any recommendations he deems appropriate. 

(b) Within one hundred and twenty days following the convening 
of each session of Congress, the Secretary of Health, Education, and 
Welfare shall submit through the President to the Congress and to the 
Office of Science and Technology an annual report upon the health 
matters covered by this Act, including the progress toward the achieve- 
ment of the health purposes of this Act, the needs and requirements 
in the field of coal or other mine health, a description and the antic- 
ipated cost of each project and program he has undertaken under sec- 
tions 301(b) and 501, and any other relevant information, including 
any recommendations he deems appropriate. The first such report shall 
include the recommendations of the Secretary of Health, Education, 
and Welfare as to necessary mandatory health standards, including 
his recommendations as to maximum permissible individual exposure 
to miners from respirable dust during a shift. 



SECTION 5315 OF TITLE 5, UNITED STATES CODE 

§ 5315. Positions at level IV 

Level IV of the Executive Schedule applies to the following posi- 
tions, for which the annual rate of basic pay shall be the rate deter- 
mined with respect to such level under chapter 11 of title 2, as adjusted 
by section 5318 of this title : 

(1) * * * 
******* 

(113) Deputy Administrator for Administration of the Law 
Enforcement Assistance Administration. 

{lib) Assistant Secretary of Labor for Mine Safety and 
Health, 

[FEDERAL METAL AND NONMETALLIC MINE 
SAFETY ACT 

[AN ACT To promote health and safety in metal and nonmetallic mineral 
industries, and for other purposes 

\Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled. That this Act may 
be cited as the "Federal Metal and Nonmetallic Mine Safety Act". 

20-040 O - 78 - 27 



412 

57 

[definitions and exemptions 

[Sec. 2. For the purposes of this Act. 

[ ( a) The term "commerce" means trade, traffic, commerce, transpor- 
tation, or communication between any State, the Commonwealth of 
Puerto Rico, the District of Columbia, or any territory or possession 
of the United States, and any other place outside the respective bound- 
aries thereof, or wholly within the District of Columbia, or any terri- 
tory or possession of the United States, or between points in the same 
State, if passing through any point outside the boundaries thereof. 

[(b) The term "mine'' means (1) an area of land from which min- 
erals other than coal or lignite are extracted in nonliquid form or, if in 
liquid form, are extracted with workers underground, (2) private ways 
and roads appurtenant to such area, and (3) land, excavations, under- 
ground passageways, and workings, structures, facilities, equipment, 
machines, tools, or other property, on the surface or underground, used 
in the work of extracting such minerals other than coal or lignite from 
their natural deposits in nonliquid form, or if in liquid form, with 
workers underground, or used in the milling of such minerals, except 
that with respect to protection against radiation hazards such term 
shall not include property used in the milling of source material as 
defined in the Atomic Energy Act of 1954, as amended. 

[(c) The term "operator" means the person, partnership, association, 
or corporation, or subsidiary of a corporation operating a mine, and 
owning the right to do so, and includes any agent thereof charged with 
respnsibility for the operation of such mine. 

[(d) The term "Secretary" means the Secretary of the Interior or his 
duly authorized representative. 

[(e) The term "Board" means the Federal Metal and Nonmetallic 
Mine Safety Board of Review created by section 10. 

[Sec. 3. (a) Each mine the products of which regularly enter com- 
merce, or the operations of which affect commerce, shall be subject to 
this Act. 

[(b) The Secretary may, by published rules adopted pursuant to the 
Administrative Procedure Act, decline to assert jurisdiction under this 
Act over any class or category of mines where, in the opinion of the 
Secretary, the effect of the operations of such mines on commerce is 
not sufficiently substantial to warrant the exercise of jurisdiction under 
this Act, and the record of injuries and accidents in such class or cate- 
gory of mines warrants such a declination of jurisdiction. 

[inspections 

[Sec. 4. The Secretary of the Interior is authorized at any time to 
cause to be made such inspections and investigations as he shall deem 
necessary in mines which are subject to this Act (1) for the purpose of 
obtaining, utilizing, and disseminating information relating to health 
and safety conditions in such mines, the causes of accidents involving 
bodily injury or loss of life, or the causes of occupational diseases 
originating therein, (2) for the purpose of determining whether or 
not there is compliance with a health and safety standard or order 
issued under this Act, or (3) for the purpose of evaluating the manner 
in which a State plan approved under section 16 is being carried out. 



413 



58 



At least once each calendar year the Secretary shall inspect each under- 
ground mine which is subject to this Act. 

[Sec. 5. For the purpose of making any inspection or investigation 
authorized by this Act, authorized representatives of the Secretary 
shall be entitled to admission to, and shall have the right to entry to, 
upon, or through, any mine which is subject to this Act. 

[health and safety standards 

[Sec. 6. (a) The Secretary shall develop, and from time to time 
revise, after consultation with advisory committees appointed pur- 
suant to section 7 of this Act, and promulgate health and safety 
standards for the purpose of the protection of life, the promotion of 
health and safety, and the prevention of accidents in mines which are 
subject to this Act. 

[(b) After consultation with an appropriate advisory committee 
established pursuant to section 7 of this Act, the Secretary, by a notice 
published in the Federal Register, shall designate as mandatory 
standards those standards promulgated pursuant to subsection (a) 
of this section which deal with conditions or practices of a kind which 
could reasonably be expected to cause death or serious physical harm, 
and the operators of mines to which such standards are applicable 
shall comply with such mandatory standards pursuant to the provi- 
sions of section 8 and section 9 of this Act. 

[(c) The Secretary shall publish in the Federal Register, health 
and safety standards which he proposes to promulgate, and he shall 
specifically identify those standards which he proposes to designate 
as mandatory standards, and he shall also specifically designate those 
mandatory standards which have been recommended by an Advisory 
Committee appointed pursuant to section 7 of this Act. Interested 
persons shall be afforded a period of not less than 30 days after the 
publication of the proposed standards in which to submit written 
data, views, or arguments. Except as provided in subsection (d) of 
this section, the Secretary may, upon the exoiration of such period 
and after consideration of all relevant matter presented, promulgate 
such standards. 

[(d) (1) On or before the last day of a period fixed for the submis- 
sion of written data, views, or arguments, any person who may be- 
adversely affected by a health and safety standard which the Secretary 
proposes to promulgate and to designate as a mandatory standard may 
file with the Secretary written objections thereto stating the grounds 
therefor, and requesting a public hearing (subject to the provisions 
of the Administrative Procedure Act) on such objections. The Secre- 
tary shall not promulgate any proposed mandatory standard respect- 
ing which such objections have been filed, until he has taken final 
action upon them as provided in paragraph (2) of this subsection. 
As soon as practicable after the period for filing such objections has 
expired, the Secretary shall publish in the Federal Register a notice 
specifying the proposed mandatory standards to which such objections 
have been filed. 

[ (2) If such objections requesting a public hearing are filed, as soon 
after the expiration of the period for filing such objections as is prac- 



414 



59 



tical, the Secretary, after due notice, shall hold a public hearing for 
the purpose of receiving evidence relevant and material to the issues 
raised by such objections. At the hearing, any interested person may 
be heard. As soon as practicable after completion of the hearing, the 
Secretary shall act upon such objections and make his decision public. 
Such decision shall be based only on substantial evidence of record at 
such hearing and shall set forth detailed findings of fact on which the 
decision is based. 
[(3) Any person aggrieved by a decision of the Secretary under 

Paragraph (2) of this subsection may obtain a review of such order 
y the United States Court of Appeals for the District of Columbia 
by filing in such court within 20 days following the issuance of such, 
decision a petition praying that the decision of the Secretary be modi- 
fied or set aside in whole or in part. A copy of such petition shall 
forthwith be served upon the Secretary, and thereupon the Secretary 
shall certify and file in the court the record upon which the decision 
complained of was issued. The findings of fact by the Secretary, if 
supported by substantial evidence, shall be conclusive ; but the court, 
for good cause shown, may remand the case to the Secretary to take 
further evidence, and the Secretary may thereupon make new or modi- 
fied findings of fact and may modify his previous action and shall 
certify to the court the record of the further proceedings. Such new 
or modified findings of fact shall likewise be conclusive if supported 
by substantial evidence. The court shall have jurisdiction to affirm 
the action of the Secretary or to set it aside, in whole or in part. The 
judgment of the court shall be subject to review by the Supreme Court 
of the United States upon certiorari or certification as provided in 
section 1254 of title 28, United States Code. The commencement of 
a proceeding under this paragraph (3) shall not, unless specifically 
ordered by the court, operate as a stay of the Secretary's decision. 
[(e) The provisions of subsection (d) of this section shall not be 
applicable to any proposed mandatory standard which has been recom- 
mended by an Advisory Committee appointed pursuant to section T 
of this Act. 

[advisory committees 

[Sec. 7. (a) The Secretary is authorized to establish advisory com- 
mittees to assist him in the development of health and safety standards 
for mines which are subject to this Act, and to advise him on other 
matters relating to health and safety in such mines. Each such advi- 
sory committee shall include among its members an equal number of 
persons qualified by experience and affiliation to present the view- 
point of operators of such mines, and of persons similarly qualified to 
present the viewpoint of workers in such mines, as well as one or more 
representatives of mine inspection or safety agencies of the States. 

[(b) Members appointed to such a committee from private life shall, 
while serving on business of the committee, be entitled to receive com- 
pensation at rates fixed by the Secretary, but not exceeding $100 per 
day, including travel time; and while so serving away from their 
homes or regular places of business, they may be paid travel expenses 
and per diem in lieu of subsistence at the rates authorized by section 5 
of the Administrative Expenses Act of 1946 (5 U.S.C., sec. 73b-2). 



415 



60 



[findings and orders 

[Sec 8 (a) If, upon any inspection or investigation of a mine which 
is subject to this Act, an authorized representative of the Secretary 
finds that conditions or practices in such mine are such that a danger 
exists which could reasonably be expected to cause death or serious 
phvsical harm immediately or before the imminence of such danger 
can be eliminated, such representative shall determine the extent of 
the area of such mine throughout which the danger exists, and there- 
upon issue an order requiring the operator of such mine to cause all 
persons, except the following persons whose presence in such area 
is necessary to eliminate the danger described in such order, to be 
withdrawn from, and to be debarred from, entering such area: 

[(1) Any person whose presence in such area is necessary, in the 
judgment of the operator of the mine, to eliminate the danger 
described in the order; (2) any public official whose official duties 
require him to enter such area; or (3) any legal or technical con- 
sultant, or any representative of the employees of the mine, who is a 
certified person qualified to make mine examinations, or is accompa- 
nied by such a person, and whose presence in such area is necessary, 
in the judgment of the operator of the mine, for the proper investi- 
gation of the conditions described in the order. 

" [(b) If, upon any such inspection or investigation, an authorized 
representative finds that there has been a failure to comply with a 
mandatoiy standard which is applicable to such mine, but that such 
failure to comply has not created a danger that could reasonably be 
expected to cause death or serious physical harm in such mine imme- 
diately or before the imminence of such danger can be eliminated,he 
shall find what would be a reasonable period of time within which 
such violation should be totally abated and thereupon issue a notice 
fixing a reasonable time for the abatement of the violation. If, upon 
the expiration of such period of time as originally fixed or extended, 
the authorized representative finds that such violation has not been 
totally abated, and if he also finds that such period of time should not 
be further extended, he shall also find the extent of the area which is 
affected by such violation. Thereupon, he shall promptly make an 
order requiring the operator of such mine to cause all persons in such 
area, excepting the following persons whose presence in such area is 
necessary to abate the violation described in the order, to be with- 
drawn from, and to be debarred from, entering such area : 

[(1) Any person whose presence in such area is necessary, in the 
judgment of the operator of the mine, to abate the violation described 
in the order; (2) any public official whose official duties require him to 
enter such area ; or (3) any legal or technical consultant, or any repre- 
sentative of the employees of the mine, who is a certified person quali- 
fied to make mine examinations, or is accompanied by such a person, 
and whose presence in such area is necessary, in the judgment of the 
operator of the mine, for the proper investigation of the conditions 
described in the order. 

[(c) Findings and orders issued pursuant to this section shall con- 
tain a detailed description of the conditions or practices which cause 
and constitute a situation of imminent danger or a violation of a 



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mandatory standard, and a description of the area of the mine 
throughout which persons must be withdrawn and debarred. 

[(d) Each finding made and notice or order issued under this sec- 
tion shall be given promptly to the operator of the mine to which it 
pertains by the person making such finding or order, and all such find- 
ings, orders, and notices shall be in writing, and shall be signed by the 
person making them. A notice or order issued pursuant to this sec- 
tion may be annulled, canceled, or revised by an authorized repre- 
sentative of the Secretary. 

[(e) If an order is made pursuant to subsection (a) of this section, 
and a State inspector did not participate in the inspection on which 
such order is based, the duly authorized representative of the Secre- 
tary who issued the order shall notify the State mine inspection or 
safety agency immediately, but not later than twenty-four hours after 
the issuance of such order, that such order has been issued. Following 
such order the operator of the mine may immediately request the State 
mine inspection or safety agency to assign a State inspector to inspect 
the mine. The State agency shall then promptly assign a State 
inspector to inspect the mine affected by such order and file an inspec- 
tion report with the Secretary and the State agency. The order of 
the duly authorized representative of the Secretary shall remain in 
effect, but shall immediately be subject to review as provided in this 
Act. 

[review by secretary 

[Sec. 9. (a) An operator notified of an order made pursuant to 
section 8(a) may apply to the Secretary for annulment or revision of 
such order. Upon receipt of such application the Secretary shall make 
a special inspection of the mine affected by such order, or cause three 
duly authorized representatives of the Secretary of the Interior, other 
than the representative who made such order, to make such inspection 
of such mine and to report thereon to him. Upon making such special 
inspection himself, or upon receiving the report of such inspection 
made by such representatives, the Secretary shall find whether or not 
danger throughout the area of such mine as set out in such order 
existed at the time of making such special inspection. If he finds that 
such danger did not then exist throughout such area of such mine, he 
shall make an order, consistent with his findings, revising or annulling 
the order under review. If he finds that such clanger did then exist 
throughout such area of such mine, he shall make an order denying 
such application. 

[(b) An operator notified of an order made pursuant to section 
8(b) may apply to the Secretary for annulment or revision of such 
order. Upon receipt of such application the Secretary shall make a 
special inspection of the mine affected by such order, or cause three 
duly authorized representatives of the Secretary of the Interior, other 
than the representative who made such order, to make such inspection 
of such mine and report thereon to him. Upon making such special 
inspection himself, or upon receiving the report of such inspection 
made by such representatives, the Secretary shall find whether or not 
there was a violation of a mandatory safety standard as described in 
such order, at the time of the making of such order. If he finds there 
was no such violation, he shall make an order annulling the order 



417 



62 



under review. If he finds there was such a violation, he shall also 
find whether or not such violation was totally abated at the time 
of the making of such special inspection. If he finds that such viola- 
tion was totally abated at such time, he shall make an order annulling 
the order under review. If he finds that such violation was not totally 
abated at such time, he shall find whether or not the period of time 
within which such violation should be totally abated, fixed under sec- 
tion 8(b), should be extended. If he finds that such period of time 
should be extended, he shall find what a reasonable extension of such 
period of time would be. Thereupon he shall find the extent of the 
area of such mine which was affected by such violation at the time 
such special inspection was made, and then he shall make an order, 
consistent with his findings, revising the order under review. If he 
finds that such violation was not totally abated at the time of such 
special inspection, and that such period of time should not be ex- 
tended, he shall find the extent of the area of such mine which was 
affected by such violation at the time such special inspection was 
made, and he shall then make an order, consistent with his findings, 
affirming or revising the order under review. 

[(c) In view of the urgent need for prompt decision of matters 
submitted to the Secretary under this section, all actions which the 
Secretary or his representatives are required to take under this section 
shall be taken as rapidly as practicable, consistent with adequate con- 
sideration of the issues involved. 

[creation of review board 

[Sec. 10. (a) An agency is hereby created to be known as the Fed- 
eral Metal and Nonmetallic Mine Safety Board of Keview, which shall 
be composed of five members who shall be appointed by the President, 
by and with the advice and consent of the Senate. 

[(b) The terms of office of members of the Board shall be five years, 
except that the terms of office of the members first appointed shall 
commence on the effective date of this section and shall expire one at 
the end of one year, one at the end of two years, one at the end of three 
years, one at the end of four years and one at the end of five years, as 
designated by the President at the time of appointment. A member 
appointed to fill a vacancy caused by the death, resignation, or re- 
moval of a member prior to the expiration of the term for which he 
was appointed shall be appointed only for the remainder of such 
unexpired term. The members of the Board may be removed by the 
President for inefficiency, neglect of duty, or malfeasance in office. 

[(c) Each member of the Board shall be compensated at the rate of 
$50 for each day of actual service (including each day he is traveling 
on official business) and shall, notwithstanding the Travel Expense 
Act of 1949, be fully reimbursed for traveling, subsistence, and other 
related expenses. The Board, at all times, shall consist of two per- 
sons who by reason of previous training and experience may reason- 
ably be said to represent the viewpoint of metal and nonmetallic mine 
operators, two persons who by reason of previous training and experi- 
ence may reasonably be said to represent the viewpoint of metal and 
nonmetallic mine workers, and one person, who shall be Chairman of 



418 



63 



the Board, who shall be a graduate engineer with experience in the 
metal and nonmetallic mining industry or shall have had at least 
five years' experience as a practical mining engineer in the metal and 
nonmetallic mining industry, and who shall not, within one year of 
his appointment as a member of the Board, have had a pecuniary in- 
terest in, or have been regularly employed or engaged in, the metal 
or nonmetallic mining industry, or have regularly represented either 
metal or nonmetallic mine operators or workers, or have been an 
officer or employee of the Department of the Interior assigned to duty 
in the Bureau of Mines. 

[(d) The principal office of the Board shall be in the District of 
Columbia. Whenever the Board deems that the convenience of the 
public or of the parties may be promoted, or delay or expense may be 
minimized, it may hold hearings or conduct other proceedings at any 
other place. The Board shall have an official seal which shall be 
judicially noticed and which shall be preserved in the custody of the 
secretary of the Board. 

[(e) The Board shall, without regard to the civil service laws, 
appoint and prescribe the duties of a secretary of the Board and such 
legal counsel as it deems necessary. Subject to the civil service laws, 
the Board shall appoint such other employees as it deems necessary 
in exercising its powers and duties. The compensation of all em- 
ployees appointed by the Board shall be fixed in accordance with the 
Classification Act of 1949, as amended. 

[(f) Three members of the Board shall constitute a quorum, and 
official actions of the Board shall be taken only on the affirmative 
vote of at least three members; but a special panel composed of one 
or more members, upon order of the, Board, shall conduct any hearing 
provided for in section 11 and submit the transcript of such hearing 
to the entire Board for its action thereon. Every official act of the 
Board shall be entered of record, and its hearings and records thereof 
shall be open to the public. 

[(g) The Board shall hear and determine applications filed pur- 
suant to section 11 for annulment or revision of orders made pursuant 
to section 8 or section 9. The Board shall not make or cause to 
be made any inspection of a mine for the purpose of determining any 
pending application. 

[(h) The Board is authorized to make such rules as are necessary 
for the orderly transaction of its proceedings, which shall include re- 
quirement for adequate notice of hearings to all parties. 
' E(i) Any member of the Board may sign and issue subpenas for 
the attendance and testimony of witnesses and the production of rele- 
vant papers, books, and documents, and administer oaths. Witnesses 
summoned before the Board shall be paid the same fees and mileage 
that are paid witnesses in the courts of the United States. 

[(j) The Board may order testimony to be taken by deposition in 
any proceeding pending before it, at any stage of such proceeding, 
.Reasonable notice must first be given in writing by the party or his 
attorney proposing to take such deposition to the opposite party or his 
attorney of record, which notice shall state the name of the witness 
and the time and place of the taking of his deposition. Any person 
may be compelled to appear and depose, and to produce books, papers, 



419 



64 



or documents, in the same manner as witnesses may be compelled to 
appear and testify and produce like documentary evidence before the 
Board, as provided in subsection (i). Witnesses whose depositions 
are taken under this subsection, and the persons taking such deposi- 
tions, shall be entitled to the same fees as are paid for like services 
in the courts of the United States. 

[ (k) In the case of contumacy by, or refusal to obey a subpena served 
upon, any person under this section, the Federal district court for 
any district in which such person is found or resides or transacts 
business, upon application by the United States, and after notice to 
such person and hearing, shall have jurisdiction to issue an order 
requiring such person to appear and give testimony before the Board 
or to appear and produce documents before the Board, or both; and 
any failure to obey such order of the court may be punished by such 
court as a contempt thereof. 

[(1) The Board shall submit annually to the Congress as soon as 
practicable after the beginning of each regular session, a full report 
of its activities during the preceding calendar year. Such report shall 
include, either in summary or detailed form, information regarding 
the cases heard by it and the disposition of each. 

[review by board 

[Sec. 11. (a) An operator notified of an order made pursuant to 
section 8 may apply to the Federal Metal and Nonmetallic Mine 
Safety Board of Review for annulment or revision of such order 
without seeking its annulment or revision under section 9. An opera- 
tor notified of an order made pursuant to section may apply to the 
Board for annulment or revision of such order. 

[(b) The operator shall be designated as the applicant in such pro- 
ceeding, and the application filed by him shall recite the order com- 
plained of and other facts sufficient to advise the Board of the nattre 
of the proceeding. He may allege in such application: that danger 
as set out in such order does not exist at the time of the filing of such 
application ; that violation of a mandatory safety standard, as set out 
in such order, has not occurred ; that such violation has been totally 
or partially abated ; that the period of time within which such violation 
should be totally abated, as fixed in the findings upon which such 
order was based, was not reasonable; or that the area of the mine 
described in such order as the area affected by the violation referred to 
in such order is not so affected at the time of the filing of such applica- 
tion. The Secretary shall be the respondent in such proceeding, and 
the applicant shall send a copy of such application by registered mail 
or by certified mail to the Secretary at Washington, District of 
Columbia. 

[(c) Immediately upon the filing of such an application the Board 
shal 1 fix the time for a prompt hearing thereof. 

[(d) Pending such hearing the applicant may file with the Board a 
written request that the Board grant such temporary relief from such 
order as the Board may deem just and proper. Such temporary re- 
lief may be granted by the Board only after a hearing by the Board at 
which both the applicant and the respondent were afforded an oppor- 



420 



65 



tunity to be heard, and only if respondent was given ample notice of 
the filing of applicant's request and of the time and place of the hear- 
ing thereon as nxed by the Board. 

[(e) The Board shall not be bound by any previous findings of fact 
by the respondent. Evidence relating to the making of the order 
complained of and relating to the questions raised by the allegations 
of the pleadings or other questions pertinent in the proceeding may 
be offered by both parties to the proceeding. If the respondent claims 
that imminent danger or violation of a mandatory safety standard, 
as set out in such order, existed at the time of the filing of the applica- 
tion, the burden of proving the then existence of such danger or 
violation shall be upon the respondent, and the respondent shall pre- 
sent his evidence first to prove the then existence of such danger or 
violation. Following presentation of respondent's evidence the ap- 
plicant may present his evidence, and thereupon the respondent may 
present evidence to rebut the applicant's evidence. 

[(f) If the proceeding is one in which an operator seeks annulment 
or revision of an order made pursuant to section 8(a) the Board, upon 
conclusion of the hearing, shall find whether or not danger throughout 
the area of such mine as set out in such order existed at the time of 
the filing of the operator's application. If the Board finds that such 
danger did not then exist throughout such area of such mine, the 
Board shall make an order, consistent with its findings, revising or 
annulling the order under review. If the Board finds that such 
danger did then exist throughout such area of such mine, the Board 
shall make an order denying such application. 

[(g) If the proceeding is one in which an operator seeks annulment 
or revision of an order made pursuant to section 8 (b) , the Board upon 
conclusion of the hearing shall find whether or not there was a viola- 
tion of a mandatory safety standard as described in such order, at the 
time of the making of such order. If the Board finds there was no such 
violation, the Board shall make an order annulling the order under re- 
view. If the Board finds there was such a violation, the Board shall 
also find whether or not such violation was totally abated at the time 
of the filing of the operator's application. If the Board finds that such 
violation was totally abated at such time, the Board shall make 
an order annulling the order under review. If the Board finds 
that such violation was not totally abated at such time, the Board 
shall find whether or not the period of time within which such viola- 
tion should be totally abated fixed under section 8(b) or section 9(b) 
should be extended. If the Board finds that such period of time should 
be extended, the Board shall also find what a reasonable extension of 
time should be, and shall immediately also find the extent of the area 
of such mine which was affected by such violation at the time of the 
filing of such application and the Board shall then make an order 
consistent with its findings, revising the order under review. If the 
Board finds that such violation was not totally abated at the time of 
the filing of the operator's application and that such period of time 
should not be extended, the Board shall find the extent of the area of 
such mine which was affected by such violation at such time, and shall 
make an order, consistent with its findings, affirming or revising the 
order under review. 



421 



66 

[(h) Each finding and order made by the Board shall be in writing. 
It shall show the date on which it is made, and shall bear the signatures 
of the members of the Board who concur therein. Upon making a 
finding and order the Board shall cause a true copy thereof to be sent 
by registered mail or by certified mail to all parties or their attorneys 
ot record. The Board shall cause each such finding and order to be 
entered on its official record, together with any written opinion pre- 
pared by any members in support of, or dissenting from, any such 
finding or order. 

[(i) In view of the urgent need for prompt decision of matters 
submitted to the Board under this section, all action which the Board 
is required to take under this section shall be taken as rapidly as prac- 
ticable, consistent with adequate consideration of the issues involved. 

[judicial review 

[Sec. 12. (a) Any final order issued by the Board under section 11 
shall be subject to judicial review by the United States court of appeals 
for the circuit in which the mine affected is located, upon the filing in 
such court of a notice of appeal by the Secretary or the operator ag- 
grieved by such final order within thirty days from the date of the 
making of such final order. 

[(b) The party making such appeal shall forthwith send a copy of 
such notice of appeal, by registered mail or by certified mail, to the 
other party and to the Board. Upon receipt of srch copy of a notice 
of appeal the Board shall promptly certify and file in such court a 
complete transcript of the record upon which the order complained of 
was made. The costs of such transcript shall be paid by the party 
making the appeal. 

[(c) The court shall hear such appeal on the record made before the 
Board, and shall permit argument, oral or written or both, by both 
parties. The court shall permit such pleadings, in additions to the 
pleadings before the Board, as it deems to be required or as provided 
for in the Rules of Civil Procedure governing appeals in such court. 

[(d) Upon such conditions as may be required and to the extent 
necessary to prevent irreparable injury, the United States court of 
appeals may, after due notice to and hearing of the parties to the ap- 
peal, issue all necessary and appropriate process to postpone the ef- 
fective date of the final order of the Board or to grant such other re- 
lief as may be appropriate pending final determination of the appeal. 

[(e) The United States court of appeals may affirm, annul, or revise 
the final order of the Board, or it may remand the proceeding to the 
Board for such further action as it directs. The findings of the Board 
as to facts, if supported by substantial evidence on the record consid- 
ered as a whole, shall be conclusive. 

[(f) The decision of a United States court of appeals on an appeal 
from the Board shall be final, subject only to review by the Supreme 
Court as provided in section 1254 of title 28 of the United States Code. 

[mandatory reporting 

[Sec. 13. The Secretary shall require operators of mines which are 
subject to this Act to submit, at least annually and at such other times 
as he deems necessary, and in such form as he may prescribe, reports 



422 



67 



of accidents, injuries, and occupational diseases, and related data, and 
the Secretary shall compile, analyze, and publish, either in summary 
or detailed form, the information obtained ; and all information, re- 
ports, orders, or findings, obtained or issued under this Act may be 
published and released to any interested person, and shall be made 
available for public inspection. 

[penalties 

[Sec. 14. (a) Whenever an operator (1) violates or fails or refuses 
to comply with any order of withdrawal and debarment issued under 
section 8 or section 9 of this Act, or (2) interferes with, hinders, or 
delays the Secretary, or his duly authorized representative, in carrying 
out his duties under this Act, or (3) refuses to admit an authorized 
representative of the Secretary to any mine which is subject to this 
Act, or (4) refuses to permit the inspection or investigation of any 
mine which is subject to this Act, or of an accident, injury, or occupa- 
tional disease occurring in or connected with such a mine or ( 5 ) being 
subject to the provisions of section 13 of this Act, refuses to furnish 
any information or report requested by the Secretary, a civil action for 
preventive relief, including an application for a permanent or tem- 
porary injunction, restraining order, or other order, may be instituted 
by the Secretary in the district court of the United States for the dis- 
trict in which the mine in question is located or in which the mine 
operator has its principal office. 

[(b) Whoever violates or fails or refuses to comply with an order 
of withdrawal and debarment issued (1) under subsection (a) of sec- 
tion 8 or (2) under subsection (b) of section 8 if the failure to comply 
with an order of abatement has created a danger that could cause death 
or serious physical harm in such mine immediately or before the im- 
minence of such danger can be eliminated, shall upon conviction there- 
of be punished for each such offense by a fine of not less than $100, or 
more than $3,000, or by imprisonment not to exceed sixty days, or both. 
In any instance in which such offense is committed by a corporation, 
the officer or authorized representative of such corporation who know- 
ingly permits such offense to be committed shall, upon conviction, be 
subject to the same fine or imprisonment, or both. 

[education and training 

[Sec. 15. The Secretary shall develop expanded programs for the 
education and training of employers and employees in the recognition, 
avoidance, and prevention of accidents or unsafe or unhealthful work- 
ing conditions in mines which are subject to this Act. 

[state plans 

[Sec. 16. (a) In order to promote sound and effective coordination 
in Federal and State activities within the field covered by this Act, 
the Secretary shall cooperate with the official mine inspection or safety 
agencies of the several States. 

[(b) Any State which, at any time, desires to develop and enforce 
health and safety standards in mines located in the State which are 
subject to this Act. shall submit, through a State mine inspection or 






423 



68 



safety agency, a State plan for the development of such standards and 
their enforcement. 

[(c) The Secretary shall approve the plan submitted by a State 

under subsection (b), or any modification thereof, whenever the State 

gives evidence satisfactory to the Secretary that under such plan — 

[(1) the State agency submitting such plan is the sole agency 

responsible for administering the plan throughout the State and 

contains satisfactory evidence that such agency will have the 

authority to carry out the plan: Provided, That the Secretary 

may, upon request of the Governor or other appropriate executive 

or legislative authority of the State responsible for determining 

or revising the organizational structure of State government, 

waive the single State agency provision hereof and approve 

another State administrative structure or arrangement if the 

Secretary determines that the objectives of this Act will not 

be endangered by the use of such other State structure or 

arrangement. 

[(2) such agency has adequate legal authority to enforce exist- 
ing health and safety standards for the purpose of the protection 
of life, the promotion of health and safety, and the prevention 
of accidents in mines in the State that are subject to this Act, 
which are, in his judgment, substantially as effective for such 
purposes as the mandatory standards designated under section 
6(b) and which provide for inspection at least annually of all 
such mines, other than quarries and sand and gravel pits, 

[(3) the agency has adequate qualified personnel necessary for 
the enforcement of the plan, 

[ (4) the State will devote adequate funds to the administration 
and enforcement of such standards, 

[ (5) reasonable safeguards exist against loss of life or property 
arising from mines which are closed or abandoned after the 
effective date of this Act, and 

[(6) the agency shall make such reports to the Secretary, in 
such form and containing such information, as the Secretary shall 
f roin time to time require. 
[(d) The Secretary shall, on the^ basis of reports submitted by the 
State agency and his own inspection of mines, make a continuing 
evaluation of the manner in which each State having a plan approved 
under this section is carrying out such plan. Whenever the Secretary 
finds, after affording due notice and opportunity for a hearing, that in 
the administration of the State plan there is a failure to comply sub- 
stantially with any provision of the State plan (or any assurance 
contained therein), he shall notify the State agency of his withdrawal 
of approval of such plan and upon receipt of such notice such plan 
shall cease to be in effect. 

[ (e) The provisions of section 8 (b) and 9 (b) of this Act shall not be 
applicable in any State in which there is in effect a State plan approved 
under subsection (c). 

[administrative provisions 

[Sec. 17. The Secretary shall provide that the major responsibility 
for administering the provisions of this Act shall be vested in the 
Bureau of Mines of the Department of the Interior which has the 



424 



69 



major responsibility for carrying out the Federal Coal Mine Safety 
Act. The Secretary acting through the Bureau, shall have authority 
to appoint, subject to the civil service laws, such officers and employees 
as he may deem requisite for the administration of this Act ; and to 
prescribe powers, duties, and responsibilities of all officers and employ- 
ees engaged in the administration of this Act: Provided, however, 
That, to the maximum extent feasible, in the selection of persons for 
appointment as mine inspectors, no person shall be so selected unless 
he has the basic qualification of at least five years practical mining 
experience and in assigning mine inspectors to the inspection and 
investigation of individual mines, due consideration shall be given to 
their previous practical experience in the State, district, or region, and 
in the particular type of mining operation where such inspections are 
to be made. 

[exclusion from administrative procedure act 

[Sec. 18. The Administrative Procedure Act shall not apply to the 
making of any finding, order, or notice pursuant to this Act, or to any 
proceeding for the annulment or revision of any such finding, order, or 
notice. 

[effect on state laws 

[Sec. 19. (a) No State or territorial law in effect upon the effective 
date of this Act or which may become effective thereafter, shall be 
superseded by any provision of this Act, except insofar as such State 
or territorial law is in conflict with this Act, or with orders issued 
pursuant to this Act. 

[(b) Provisions in any State or territorial law in effect upon the 
effective date of this Act, or which may become effective thereafter, 
which provide for greater safety of persons in a mine as defined in this 
Act, than do provisions of this Act, which relate to the same phase of 
such operations, shall not be construed or held to be in conflict with 
this Act. Provisions in any State or territorial law in effect upon the 
effective date of this Act, or which may become effective thereafter, 
which provide for the safety of persons in a mine as defined in this 
Act concerning which no provision is contained in this Act, shall not 
be construed or held to be superseded by this Act. 

[(c) Nothing in this Act shall be construed or held to supersede or in 
any manner affect the workmen's compensation laws of any State or 
territory, or to enlarge or diminish or affect in any other manner the 
common law or statutory rights, duties, or liabilities of employers and 
employees under State or territorial laws in respect of injuries, occu- 
pational or other diseases, or death of employees arising out of, or in 
the course of, employment. 

[report of secretary 

[Sec. 20. The Secretary shall submit annually to the Congress, as 
soon as practicable after the beginning of each regular session, a full 
report of the administration of his functions under this Act during the 
preceding calendar year. Such report shall include, either in sum- 
mary or detailed form, the information obtained by him under this 
Act, together with such findings and comments thereon and such rec- 
ommendations for legislative action as he may deem proper. 



425 

70 

[authorization op appropriations 

[Sec. 21. There are authorized to be appropriated, out of any moneys 
in the Treasury not otherwise appropriated, such sums as may be 
necessary to carry out the provisions of this Act. 

[effecttve date op act 

[Sec. 22. This Act shall become effective on the date of its enactment, 
except that sections 8 and 9, and subsection (b) and paragraph (1) of 
subsection (a) of section 14 shall become effective one year after the 
date of publication of notice in the Federal Register of the designation 
of mandatory standards as provided for in section 6(b) of this Act. J 



426 



MINORITY VIEWS 

The committee has reported a bill which is not in the best interest 
of the miners in the metal and nonmetallic mining industry. 

Criticism of Committee Action 

During the 94th Congress, the committee held 8 days of hearings on 
H.R. 9318, the precursor to H.R. 13555, a bill that amended the Fed- 
eral Metal and Nonmetallic Act of 1966 (FMNMA). No considera- 
tion was given to the Federal Coal Mine Health and Safety Act of 
1969 (FCMHSA). H.R. 13555 was explained in House Report No. 94r- 
1147 and by a vote of 309 to 86 passed the House on July 28, 1976. 

In this Congress, 6 days of hearings, actually seven different hear- 
ings, were directed at H.R. 2060, a bill essentially similar to H.R. 
13555 of the 94th Congress, and H.R. 4287, a bill which "rewrote" the 
FCMHSA in a manner similar to H.R. 13555, but included both coal 
and non-coal in its provisions. As a result of the content of these two 
bills, almost all the testimony at our hearings was directed at the sub- 
stantive portions of the bills since they radically amended both the 
Coal Act and the Noncoal Act as well as to the transfer of MESA 
from the Department of Interior to the Department of Labor. 

Despite these extensive hearings on upgrading the Metal and Non- 
metallic Mine Safety Act, to which there have been no dissenting 
voices, the transfer, and the substantive provisions of the bills intro- 
duced, H.R. 4287, as reported, was hastily conceived the day prior 
to subcommittee markup. H.R. 4287, as reported, did not contain the 
substantive provisions the witnesses have addressed themselves to over 
the years. The bill as reported did not contain the provisions approved 
by all witnesses, such as an increased emphasis on safety and health 
training. The bill as reported did not contain the "general duty" 
clause, originally supported by organized labor and largely opposed 
by management. The oill as reported did not contain the rulemaking 
provisions which drew so much comment by all witnesses. About all 
H.R. 4287, as reported, accomplished was to repeal the Metal and 
Nonmetallic Mine Safety Act and to bring all mining safety and 
health under the Federal Coal Mine Health and Safety Act. The sub- 
committee did this by taking the word "coal" out of the Coal Act. The 
full committee did this by reinserting the word "coal" and including 
"and other" before the word mines or mining. 

The FCMHSA was passed in later 1969. Since that time, there have 
been no oversight hearings on that act. As a matter of fact, the coal 
industry, and the United Mine Workers, have been calling for over- 
sight hearings, each critical in their own way of the workings and ad- 
ministration of that act. So, all our hearings on upgrading the Metal 
and Nonmetallic Act and/or the Coal Act have gone for naught, since 
not one witness addressed the issue of simply bringing metal and non- 
metal mining under the existing provisions of the Coal Act. Actually, 

(71) 



427 



72 



we cannot say how the Coal Act is applicable to the metal and non- 
metal industry, nor can we say how it is inapplicable. 

Combining coal and noncoal mining under the Federal Coal Mine 
Health and Safety Act at this time is not logical. It is the announced 
intention of the Labor Standards Subcommittee to have oversight 
hearings on the Coal Act. However, these hearings are allegedly ad- 
dressed only to coal. However, if the two acts are combined, as H.K. 
4287, as reported, occurs, any proposed changes to the Coal Act will 
affect the noncoal industry as well. Moreover, if the Coal Act is rec- 
ognized as inadequate now, why would we want to combine the metal 
and nonmetallic industry with it ? 

Although the contention has been made that all mining belongs under 
one Act, it is apparent that there are differences between coal and 
noncoal. For instance, coal mines emit gas, methane, while only few 
nonmetallic mines contain methane. Coal seams are usually in flat, 
horizontal deposits or layers, and the engineering involved is very 
similar from seam to seam, while metal and nonmetallic can be found 
in any formation. The extraction process of noncoal mining, however, 
is unique, requiring different engineering in virtually every mineable 
deposit of valuable minerals. There are approximately 3,000 under- 
ground coal mines, while there are only about 666 underground metal 
and nonmetallic mines. On the other hand there are approximately 
14,000 metal and nonmetallic surface mines, quarries, sand and gravel 
pits, etc., and about 2,000 surface coal mines. Each of these has been 
subject to its two separate standards and regulations for a number of 
years. Even Congressman Morris Udall, chairman of the Interior and 
Insular Affairs Committee, sees a rationale for the difference between 
coal and noncoal mining. As he stated this past January : 

I believe that geological circumstances are considerably 
different than fossil fuel extraction . . . We started out four 
years ago to write a surface mining bill that would cover all 
minerals, and we soon discovered that the problems were 
quite different and that you can't include the same kind of 
provisions for both kinds of mining. 

The Federal Coal Mine Health and Safety Act was passed as a 
direct result of the coal mine disaster in Mannington, W. Va., in 
November 1968. There was no question that Congress needed to enact 
a strong law in order to protect the lives of the coal miners of this 
country. There have been no recent problems of this sort in the noncoal 
mining industry. In fact, the industry, MESA, and the miners have 
together used the existing Metal and Nonmetallic Mine Safety law to 
prevent such problems. 

Congress has in the past recognized the differences between coal 
and noncoal mining. This is evidenced by the fact that there presently 
exist two laws, each designed to take into consideration the specific 
problems of the two different industries. Under those two laws, funds 
are appropriated to carry them out separately. One fear, and we sus- 
pect, a very real danger to the metal and nonmetallic miner, is that 
the funds under a single Mine Safety Act will be directed mostly 
toward the coal industry, leaving the metal and nonmetal mine 
subject to lesser concerns than in the past. This point must not be 
overlooked for, in considering H.R. 13555 in the last Congress, almost 
all discussion on the House Floor concerned the Scotia Coal Mine 

20-040 O - 78 - 28 



428 



73 



disaster, and failed to focus on the bill, which was directed to the 
metal and nonmetallic industry and not the coal industry. 

There are many problem areas in H.R. 4287, as reported, which 
could negate many advances presently being made. For instance, sec- 
tion 201 of H.R. 4287 amends title I of the Federal Coal Mine Health 
and Safety Act by inserting "or other" after "coal" wherever it ap- 
pears. Under sections 102(a) and (b) two advisory committees are 
established. These two advisory committees, the Coal Mine Safetv 
Research Advisory Committee/ and the Coal Mine Health Research 
Advisory Committee, with passage of H.R. 4287 would become Mine 
Safety and Mine Health Research Advisory Committees. It must be 
pointed out that these two committees are comprised of individuals 
whose expertise is in coal mine health and safety. What about the 
concerns of the noncoal mining industry ? 

Although probably some of the problem areas can be corrected by 
rather simplistic solutions, it illustrates the fact that H.R. 4287, as 
reported, was hastily conceived and is not the best avenue to follow 
in strengthening the enforcement provisions to the metal and 
nonmetallic mining industry. 

The majority states, correctly, that the existing Metal and Non- 
metallic Mine Safety Act is not as stringent in its enforcement provi- 
sions as is the Coal Act. However, that does not necessarily mean that 
the existing provisions of the Coal Act should be applied to the metal 
and nonmetallic industry. Instead, it would appear than an effort 
should be made to strengthen the enforcement provisions applicable 
to the metal and nonmetallic mining industry, while recognizing the 
inherent differences between coal and noncoal mining. 

An Alternative to Committee Action 

At subcommittee and again at full committee, Congressman Sarasin 
offered a substitute, which is basically identical to H.R. 13555, as 
passed by the House in the 94th Congress. The substitute has been 
the subject of extensive hearings over the years. The substitute 
strengthens the enforcement provisions applicable to the metal and 
nonmetallic mining industry, keeps separate the law applicable to the 
coal industry, and, in effect, recognizes the inherent difference be- 
tween coal and noncoal mining. 

The substitute amends and upgrades the Metal and Nonmetallic 
Mine Safety Act of 1966 in the following ways : 

It provides for swift development of standards. 
It will work out the contested jurisdiction between OSHA and 
MESA over milling operations. 

It provides for a "general duty" clause. 
It allows issuance of emergency temporary standards. 
It provides for variances. 

It mandates inspections four times a year underground. 
It mandates an Advisory Committee to review nonmandatory 
health and safety standards. 

It provides for citations and permissive penalties. 
It allows for walkround rights, rights to reports of medical 
examinations, and other rights to miners. 

It also includes transfer of MESA from the Department of 
Interior to the Department of Labor. 



429 



74 






The specific areas of difference between the substitute and H.R. 
13555 as it passed the House last year are : 

1. Coverage of independent contractors under the definition of 
"operator." H.R. 13555 only covered "owner-operators," while the 
substitute will cover them as well as non-owner operators (Page 6). 

2. Provides that an advisory committee must be established to con- 
sider OSHA standards applicable to mining. The mandatory advisory 
committee has been requested and recommended by most witnesses, 
and even the Senate bill, S. 717, rejected the administration's sugges- 
tion to do away with advisory committees in mining (Page 11). 

3. Explicates the reason that the Department of HEW is allowed 
to enter and inspect a mine as "for the purposes of developing im- 
proved mandatory health standards." Otherwise, the language would 
indicate that both the Labor and HEW Departments could inspect, 
cite, and propose penalties, which was not the intent of the bill (Page 
25). 

4. In issuing a citation, an inspector must "determine" that an 
operator has violated the Act or regulations rather than just "believe" 
a violation occurred (Page 35). 

5. In a similar manner, the Secretary must "determine" that an 
operator has failed to correct a violation before the Secretary may 
propose a penalty for such failure, instead of just "believing" the 
operator has failed to correct (Page 41) . 

6. Allows 30 working days to contest a citation or a failure to cor- 
rect, instead o,f only 15 days (Pages 40, 41 and 42) . 

7. Strikes "or repeatedly" from penalty provisions for two reasons : 

(a) An operator can be "repeatedly" in violation if he operates 
more than one mine ; and 

(b) Conditions in mines are constantly changing, thereby af- 
fording an opportunity for numerous "repeated" violations (Page 
52). 

8. Provides that where a miner requests an inspection because of 
"imminent danger" conditions, that it is mandatory that the miner 
notify the operator. If there is possibly an imminent danger, it should 
be corrected immediately if possible (Page 27) . 

9. Adds a new section 29, entitled "Qualification of Mine Inspectors," 
which requires inspectors to have 5 years practical experience or three 
years experience and appropriate mining education (Page 77). 

10. Removes the "Congressional veto" of regulations. 
These charges are the result of testimony at the hearings. 

The substitute is a good bill. The substitute is a strong bill. The 
substitute addresses the problems of health and safety in metal and 
nonmetallic mines — the area the majority feels needs the most atten- 
tion. The substitute assures that metal and nonmetallic miners need 
not fear that their health and safety will be lessened. 

Formal Hearings 

Although Congressman Quie was successful in having an amend- 
ment assuring separate standards adopted, there was one other par- 
ticular area that should have demanded some attention. That is, the 
suggestion that formal hearing on proposed health and safety stand- 
ards be provided when requested to the metal and nonmetallic in- 



430 



75 



dustry. Although informal hearings have been applicable under the 
Coal Act, formal hearings have been required in the past under the 
Metal and Nonmetallic Act. In its present form, H.R. 4287 provides 
only informal hearings respecting future developments of health 
and safety standardsf or all mines. 

On the final day of hearings — just a few minutes prior to sub- 
committee markup — witnesses representing the trona mines brought 
to the committee's attention the benefit of formal hearings. In a case 
heard last June and July, a proposed standard would have caused 
hazards to underground miners had it not been for the ability to cross- 
examine the agency's witness. As a result of the cross-examination, the 
Interior Department agreed with the operators' views, and thus, 
averted potential disaster. 

In contending that formal hearings are needed, at least, the trona 
witnesses also pointed out that seldom, if ever, do formal hearings 
hold up the issuance of standards more than the one day necessary for 
hearing. 

Consequently, the recommendation to afford formal hearings to 
objections to proposed standards should be favorably considered. 

Transfer 

In the past, there have been compelling arguments for opposing 
transfer of MESA from the Department of Interior to the Depart- 
ment of Labor, and there have been substantial arguments supporting 
the case for transfer. The transfer, in this Congress, is supported by 
the present administration, aware of the issues that have been raised 
in the past. 

In not opposing the transfer, since some of us have opposed transfer 
in the past, we wish to make it clear that we do not cast any aspersions 
upon the Department of Interior or MESA. The statistics supplied 
show that fatalities and disabling injuries in mines have shown an 
encouraging doward trend. We hope that trend will continue at an 
accelerating rate, no matter which Department enforcement is located. 

Conclusion 

The majority report has gone to great lengths to justify bringing 
metal and nonmetallic workers under the Coal Act, based on the use of 
statistics. Rather than juggle those statistics in an unrealistic man- 
ner, we would like to note that statistically, the Federal Metal and 
Nonmetallic Mine Safety Act has achieved a superior showing over 
the Coal Act as it is applicable to surface miners — the great majority 
of metal and nonmetal miners. However, the majority uses the argu- 
ment that the Coal Act has achieved a superior showing in reducing 
the fatality rate in underground mines than the Metal and Nonmetallic 
Act in underground mines, and, therefore, the Coal Act should be 
applied to all. This argument is made even though there are relatively 
few underground metal and nonmetal mines or miners as compared to 
either underground coal mines or miners or to surface metal and 
nonmetal mines or miners. As well, the majority report ignores the suc- 
cess of the Metal and Nonmetallic Act in lowering the frequency rate 






431 



76 



of nonfatal disabling injuries in both underground and surface mines 
in a manner superior to the Coal Act. 

It appears that these statistics only prove that the Federal Coal 
Mine Health and Safety Act is beginning to work better where it 
was meant to be applied — mostly underground — and the Federal Metal 
and Nonmetallic Act is beginning to work best where it is usually 
applicable — on the surface — although it seems to be achieving greater 
compliance on the whole. 

We would, accordingly, urge the support of the substitute to be 
offered by Mr. Sarasin. We are not convinced of the arguments based 
on statistics or equality. We support the upgrading of the Metal and 
Nonmetallic Mine Safety Act in a manner that will assure further pro- 
tection to miners. The Coal Act, other than providing for mandatory 
penalties, is not upgrading, it is not strengthening and it does not as- 
sure more compliance. 

In ignoring the recommendations of the administration for legisla- 
tion to provide for substantial improvements to existing mine health 
and safety legislation, the committee bill only combined the two exist- 
ing Acts without improvements supported by the administration in 
the Substitute. We strongly recommend support for the substitute in 
the interest of our Nation's miners. 

Al Quie. 

John N. Erlenborn. 

Konald A. Sarasin. 

Shirley N. Pettis. 



432 

[From the Congressional Record — Senate, May 16, 1977] 

(P. 7663) 

******* 

Reports of Committees 

The following reports of committees were submitted today: 
• * * * * * * 

By Mr. Williams, from the Committee on Human Resources: 

With an amendment : 
S. 717. A bill to promote safety and health in the mining industry, to prevent 
recurring disasters in the mining industry, and for other purposes (Rept. No. 
05-181). 

******* 
[A copy of S. 717 as reported, with accompanying Senate Report 
95-181 follows:] 






433 



95th CONGRESS 

1st Session 



Calendar No. 154 

S. 717 

[Report No. 95-181] 



IN THE SENATE OF THE UNITED STATES 

February 11 (legislative day, February 1), 1977 

Mr. Williams (for himself, Mr. Abourezk, Mr. Anderson, Mr. Bayh, Mr. 
Brooke, Mr. Case, Mr. Church, Mr. Clark, Mr. Cranston, Mr. Eagleton, 
Mr. Ford, Mr. Heinz, Mr. Huddleston, Mr. Humphrey, Mr. Javits, Mr. 
Kennedy, Mr. McGovern, Mr. Maonuson, Mr. Metcalf, Mr. Metzenbaum, 
Mr. Nelson, Mr. Pell, Mr. Randolph, Mr. Riegle, Mr. Schweiker, Mr. 
Stafford, and Mr. Stevenson) introduced the following bill; which was 
read twice and referred to the Committee on Human Resources 

May 16, 1977 
Reported by Mr. Williams, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 



A BILL 

To promote safety and health in the mining industry, to prevent 
recurring disasters in the mining industry, and for other 
purposes. 

1 Be it enacted by the Senate and House of Represcnta- 

2 tives of the United States of America in Congress assembled, 

3 That this Aot may bo cit e d as th e "F e d e ral Mine Safety and 

4 Health Amondmonto Aot of 1977" . 



434 



2 

1 TITLE I AMENDMENTS TO THE GENERAL 

2 PROVISIONS OF THE FEDERAL GOAL MINE 

3 HEALTH AND SAFETY ACT OF' 1060 

4 S HORT TITLE 

5 Sec . 101 i Tho first eoction of tho Fodoral Coal Mino 

6 Health and Safety Aot of 196 9 io amondod to road ao fol 

7 lows; "That this Aot may bo oitod as tho 'Fodoral Mino 

8 Safoty and Health Aot of 1077' ". 

9 DEFINITIONS AND APPLICABILITY 

10 Seo. 102. (a) (1) Sootion 2 of tho Fodoral Coal Mino 

11 Health and Safoty Aot of 1069 io amondod by otriking out 

12 "ooal" whorovor it app e ars. (2) S e ction 2(g) (1) of such 

13 Aot ifl am e ndod by striking out "th e Int e rior" and inserting 

14 in lieu thoroof "Labor ". 

15 (b) (1) Section 3 (a) of s uch Act is am e nd e d by strik - 

16 ing out "tho Int e rior" and ins e rting in li e u thoroof "Labor" . 

17 (2) Sootion 3 (d) of s uch Act i s amend e d b}r d e leting 

18 -fc ho s e micolon at the end thereof, and in s erting in lieu th e r e of 

19 "or any ind e p e ndent contractor performing s e rvices or oon - 

20 ctruction at cuch mino > " 

21 (8) Sootion 3 (h) of such Act i s am e ndod to rood ao 

22 follows : 

23 "(h) /Min e ' means (1) an area of land from which 

24 minorals are extracted in nonliqui d form or, if in liquid 

25 form, are extracte d w i th workers undergr o und, (2) private 



435 



3 

1 ways and road s appurtenant to such area, and (3) land s , 

2 excavations, underground passag e ways, shafts, slop e s, tun - 

3 nel s , and working s , s tructures, facilities, equipm e nt, machin e^ 

4 tools, or other property including impoundments, r e t e ntion 

5 dam s , and tailing s pond s , on the s urfac e or underground, used 

6 in, or to bo used in, or rosulting from, tho work of extracting 

7 suoh minerals from thoir natural deposits in nonliquid form, 

8 or if in liquid form, with work e rs underground, or ueod in tho 

9 milling of such min e rals, or tho work of preparing coal, and 

10 includes custom coal pr e paration facilities, e xc e pt that with 

11 re s p e ct to protection again s t radiation hazards such term shall 

12 not include property u s ed in the milling of source minerals 

13 d e fin e d in th e Atomic Energy Act of 1954, as amonded. In 

14 making a determination of what constitut e s min e ral milling 

15 for purposes of thi s Act the Secretary shall giv e due consider - 

16 ation to th e conveni e nc e of admini s tration r e sulting from th e 

17 d e l e gation to one Assistant Secretary of all authority with 

18 re s pect to th e health and s afety of miners employed at one 

19 physical ostablishm e nt» " 

20 (1) Soctions 3 (d) , (o) , ■ (g) , and (j) of such Act are 

21 each amended b}r s triking out the word "coal" wherev e r it 

22 appears . 

23 (5) S e ction 3 of such Act i s amended b}r striking out tho 

24 word "and" at the end of paragraph (1) , b}r striking out t ke- 

25 period at the end of paragraph (m) and ins e rting in liou 



436 



4 

1 th e reof a semicolon, and by adding at tho ond thereof tho 

2 following n e w paragraphs : 

3 "-(») — 'Administration* moans tho Mino Safety and 

4 Health Administration in tho Department of Labor; and 

5 " (o) 'Commission' moans tho Fodoral Mino Safoty and 

6 Health Koviow Commission. " 

7 (o) Section d of such Act is amondod by striking out 

8 the word "oonl" . 

9 (d) (1) Section 5(o) of such Act is amondod by strik - 

10 ing out Labor" and insorting in liou thoroof "tho In tori or " . 

11 (2) S e ction 5(f) of suoh Aot is amondod by striking 

12 out th e word "coal" whor e vor it appoars, and by striking 

1 3 out "section 106" and substituting "sootion 107" . 

14 TITLE II MINE SAFETY AND HEALTH 

1 5 S TANDARD AMENDMENTS 



16 



AMENDMENT TO TITLE 1 



17 Sec . 201 . Titl e I of the Fed e ral Coal Mine H e alth and 

8 Safety Act of 1969 is amend e d to r e ad as follows: 

19 "dutie s 

20 "Seo* 101. (a) Each min e op e rator (1) shall furnish 

21 to oach miner employment and a place of emplo3onont which 

22 ar e free from recognized hazards that are cau s ing or ar e 

23 likely to caus e d e ath or harm to such minor; and (2) ohall 
oomply with the safety and health s tandard s and all rul e s, 
regulations, and order s promulgated under this Act; and 



437 



5 

1 "(b) Each miner subj e ct to th e provisions" of this Act 

2 shall comply with the safety and health standards and all 

3 rules, regulation s , and order s promulgated under this Act 

4 which aro applicabl e to his own actions and conduct. 

5 "SAFETY AMD HEALTH STAMDx\EDS 

G Sec. 102 i (a) Tho Secretary ma}^ by rulo promulgate, 

7 modify, or revoke any safet}^ and health standards for tho 

8 health and safety of minors, including standards for mino 

9 roscuo and fir e fighting operation s , and for the prevention 

10 of accid e nts, injuri e s, or health hazards in mines which aro 

11 subj e ct to this Act in accordance with section 553 of title 5, 

12 Unit e d States Cod e (without regard to any referenc e in s uch 

13 s e ction to sections 556 and 557 of such titl e ), and th e fol - 

14 lowing provisions : 

15 " ( 1 ) Wh e never the Secretary, upon th e basis of infor - 

16 mation submitted to him in writing by an int e r e sted person, 

17 a r e pr e sentativ e of any organization of employers or em 

18 ployooc, a nationally r e cognized standard s- producing organi c 

19 zation, tho Secretary of H e alth, Education, and Welfare, tho 

20 National Institute for Occupational Safety and Hoalth, or a 

21 Stato or political subdivision, or on tho basis of information 

22 developed by tho Socrotary or oth e rwiso availablo to him, 

23 d e t e rmines that a rul e should be promulgated in order to 

24 serv e tho obj e ctiv e s of this Act, the Secretary may requ e st 

25 tho r e commendations of an advisory committee appointed 



438 



6 

1 und e r s ection 103 of this Act . Th e S e cr e tary shall provide 

2 such an advisory committ e o with any propos a l s of hi s own 

3 or of th e S e cr e tary of H e alth, Education, and W e lf a re, to - 

4 gothor with all pertinent faotual information dev e loped by 

5 the Secr e tary or th e S e cr e tary of H e alth, Education, and 
Welfare, or otherwko available, including th e r e sult s of r e~ 

7 sea rch , demon s tr a tions, and e xp e rim e nts. An advicory com 

8 mittoo shall submit to the Secretary its recommendations 

9 regarding the rul e to bo promulgat e d within ninoty days from 

10 th e date of it s appointmont or within s uch longer or s hort e r 

11 p e riod as m a y b e pr es cribed by the S e cretary, but in no e v e nt 

12 for a p e riod which 1 6 long e r than on e hundr e d and eighty 

13 d a ys. Wh e n th e S e cr e tary r e c e iv es a recomm e nd a tion from 

14 th e Nation a l Institut e for Occupational Saf e ty a nd Health 

15 that a rulo b e promulgated, modified, or rovokodj the Sooro 

16 tary must, within sixt}' days after roooipt thoroof, refer such 

17 r e comm e ndation to an advi s ory committee pursuant to this 

18 par a gr a ph, or publi s h s uch as a proposed rulo pursuant to 

19 paragraph (2) of thi s s ubsection, or publi s h in the Federal 

20 Rogistor his d e t e rmination not to do s o, and his reasons 

21 ther e for. 

22 "(2) Th e Secretary s hall publi s h a proposed rule pro 

23 mulgating, modifying, or revoking a s afety and hoalth stand 

24 ard in tho Federal Regi s ter . If the S e cretary dot e rminoe that 

25 a rule s hould be proposed and in connection th e r e with has 



439 



7 

1 appointed an advi s ory committee a s provided b)r paragraph 

2 ( 1 ) of this subsection, th e Secretary shall publish a proposed 

3 rul e or the reasons for hi s determination not to publi s h such 

4 rule, within s ixty days following the submi s sion of th e advi - 

5 sory committee's recommendation , or the expiration of the 

6 period of time pre s cribed by the Secretary in such submission. 

7 In oithor e vent, the Secr e tary shall afford int e rested persons 

8 a poriod of thirt} > day s after any s uch publication to submit 

9 written data or comments on the propo s ed rule. 

10 " (3) On or before the last day of the p e riod provid e d 

11 for th e submi ss ion of written data or comment s under para - 

12 graph (2) , any intere s ted person may file with the Secretary 

13 written objection s to the proposed rule, s tating the ground s 

14 therefor and requesting a public hearing on such objection s . 

15 Within thirty days after the last day for filing such obj e c - 

16 tions, th e Secretary s hall publish in the Federal B e gist e r a 

17 notic e s pecifying the s afety or health s tandard to which 
13 objoetions have been filed and a hearing reque s ted, and 

19 specifying a tim e and place for s uch hearing. An}r hoaring 

20 und e r this s ub s ection s hall be held promptly. H e arings ro 

21 quir e d by thi s s ub s ect i o n sh al l be informal and shall bo 

22 conducted bjr the Secretary, who majr prescribe s uch rul e s 

23 and make s uch rulings c on cerni n g procedure s in such hoar - 

24 ing s to avoid unnece s sarjr costs or delay . A verbatim tra Q* 



440 



8 

1 script shall bo taken of any sunk informal hearing and shall 

2 be a v a ilabl e to th e public , 

3 "-(4r) — Within sixty days aft e r th e e xpiration of th e 

4 p e riod provided for the submission of writt e n data or oon> 

5 in e nte und e r paragraph (2) , or within sixty days after th e 

6 completion of any h e aring held under paragraph (3), th e 

7 S e cr e tary shall issue a rule promulgating , modifying, or ro - 
g voking a saf e ty or health ha a a-rd or mnko a det e rmination 
9 that a rul e should not bo issu e d . Such a rul e may contain a 

10 provision delaying its offootivo dato for s uch period (not jn 

11 exc e ss of ninoty day s ) a s th e S e cr e tary d e t e rmines may be 

12 necessary to insuro that affootod operators and minora will bo 

13 informod of tho oxistonoo of tho standard and of ito tormo and 

14 that op e rators aff e oted aro givon an opportunity to familiariao 

15 thomsolv e s and their omployoos with tho e xistence of th e 
1(3 requirements of the standard . 

17 " (5) (A) — Tho Secr e tary, in promulgating standards 

18 d e aling with toxic materials or harmful physical agents under 

19 this subs e ction, shall set standards which most adequately 

20 assuro on tho basis of tho bost availablo ovidonco that no minor 
2i will suffer any material impairment of h e alth or functional 

22 capacity e ven if such min e r has rogular oxposuro to tho 

23 hazards d e alt with by such standard for the period of his 

24 working Kfo. Dovolopmont of standards und e r this subsection 

25 s hall b e bagod upon r e s e arch, d e monstrationc, osporimonte, 



441 



9 

1 and such other information as ma}?- be appropriate . In 

2 addition to the attainment of the highe s t degree of hoalth and 

3 s afety protection for the employee, other con s iderations shall 

4 b e th e lat e st availabl e sci e ntific data in the fi e ld, tho feasibility 

5 of tho standards, and oxporionco gainod undor this and othor 

6 hoalth and saf e ty lawsi Wh e never practicabl e , the standard 

7 promulgated shall bo oxpressod in terms of objootivo critoria 

8 and of the p e rformance desirod . 

9 (B) Th e S e cr e tary of H e alth, Education, and Wolfaro 

10 as soon as possibl e after th e dato of enactment of th e F e deral 

11 Mino Safety and Hoalth Amendments Act of 1977 but in 

12 no event later than thre e years aft e r such dato and on a 

13 continuing basis thereafter, shall, for e ach toxic material 

14 or harmful physical agont which io uood or found in a 

15 mine , determine whether such mat e rial or agont is poton- 

16 tially toxic at th e concentrations in which it is usod or 

17 found in a mino, and shall immediat e ly submit such deter - 

18 mination to th e S e cretary, together with all pertinent 

19 crit e ria . Within sixt}r days after r e c e iving any d e termination 

20 tog e th e r with crit e ria in accordanc e with tho procoding 

21 s e ntenc e r e lating to a toxic mat e rial or harmful physical 

22 agent which io not eovorod by a hoalth or safety standard 

23 promulgat e d und e r this section, th e S e cretary shall oither 

24 appoint an advisory committoo to mako rocommondations 

25 with rospoct to a hoalth and safety standard cov e ring such 



442 



10 

1 mat e rial or agent in accordanc e with paragraph ( 1 ) of thin 

2 s ubs e ction or publi s h a propos e d rul e promulgating such 

3 a health and safety standard in accordanc e with paragraph 

4 f&) — of thio oubseotion or shall publish bin determination 

5 not to do so . 

6 " (*i) Any utondard promulgated under this subs e ction 

7 s hall prescribe the use of labels or other appropriate forms , 
3 of warning as are necessary to insure that employees are ap - 
9 prised of all hazards to which they are expos e d, r e l e vant 

10 symptoms and appropr i ate emerg e ncy tr e atment, and prop e r 

11 conditions and precautions of safo use of exposure. Whore 

12 appropri a te , such s tandard s h a ll a l s o pr es cribe s uitabl e pro 

13 tectiv e e quipment and control or technological procedures 

14 to b e us e d in conn e ction with such hazards and shall pro 

15 vid e for monitoring or mea s uring employee e x posure at such 

16 locations and intervals, and in sueh manner so as to assure 

17 the maximum protection of min e rs, In addition, whoro 

18 appropriate , any s uch s tandard s hall pre s cribe th e type and 

19 frequ e ncy of medical examinations or other te s t s which shall 

20 bo mad e available, by the operator or at his co s t, to min e rs 

21 exposed to such hazard s in order to mo s t effectiv e ly deter - 

22 mino whether the health of s uch employees is adv e rsely 

23 affected by such exposure . Where appropriate, the standard 

24 ohall provide that where a determination is made that a 

25 miner may suffer material impairment, of health or functional 



443 



11 

1 c apacity by r e ason - of exposure to tho hazard oov e rod by the 

2 standard, that miner shall be removed from 8iich exposure 

3 and realigned. Any minor transferred as a result of ouoh 

4 oxpoouro ohall oontinuo to roooivo compensation for such 

5 work at not loon than tho regular rato of pay for minors 

6 in tho classification such minor hold immodiatoly prior to 

7 his transfer. In tho event ouoh medical examinations are in 
S tho nature of research, as determined by tho Scorotary of 
9 Health, Education, and Welfare, suoh examinations may be 

10 furnished at tho expense of tho Secretary of Health, Eduoa 

11 tion, and Welfare. Tho results of ouoh examinations or tests 

12 shall be furnished only to the Secretary or the Secretary 

13 of Health, Education^ and Welfare, and, at tho request of tho 
11 minor, to his designated physician. 

15 " (7) In promulgating or rovoking standards as author 

16 used in thio titlo, or in publishing any rule as authorized in 

17 this title, tho Scorotary shall not reduce tho protection af 

18 forded miners below that provided by any safety or health 

19 standard previously in offoot . 

20 " (b) (1) Tho Soorctary ohall provide, without regard 

21 to the requirements of chapter 6, titlo 5, United States Code, 

22 for an omergonoy temporary standard to tako immediate 

23 offoot upon publication in tho Fodoral Eogiotor if ho deter 

24 mines (A) that minors aro oxposod to gravo danger from 

25 exposure to substanoos or agonto determined to bo toxic or 



20-040 O - 78 - 29 



444 



12 

1 phyoioally harmful, and (B) that nuoh omorgonoy standard 

2 in nooosoary to protoot minors from suoh dangor . 

3 " (2) Suoh otondard ohall bo offootivo until superceded 

4 by a standard promulgated in aooordanoo with tho prooo- 

5 durcn prosoribod in paragraph (3) of this suboootion. 

6 " (3) Upon publication of ouoh standard in tho Fodoral 

7 Register, tho Soorotary ohall oommonoo a prooooding in ao - 

8 oordanoo with sootion 102(a) of thio Aot, and tho standard 

9 an published shall aloo oorvo an a propoood rulo for tho pro 

10 oooding. Tho Soorotary shall promulgato a otandard undor 

11 thio paragraph no lator than nino monthn after publication of 

12 tho omorgonoy standard as providod in paragraph (2) of 

13 thio oubocotion. 

14 " (o) Tho Score tary in authorised to grant a variance 

15 from any standard or portion thereof whenever he deter 

16 minoo, or tho Soorotary of Health, Education, and Welfare 

17 oortifios, that ouoh varianoo io noooooary to pormit an opcr 

18 ator to participate in rosoaroh approved by him or tho Sec 

19 rotary of Health, Education, and Wolfaro designed to demon 

20 strato or validat e n e w and improved t e chniquos to safeguard 

21 tho health or safety of workorsi No such varianoo shall bo 

22 grantod until tho Soorotary shall find that tho granting of 

23 suoh varianc e will not "adversely affect the h e alth or s afety 

24 of tho minors, and tho S e cretary notifies tho minors affootod 

25 dirootly and by^ publication in th e F e d e ral Rogistor . 






445 



13 

1 " (d) (1) Any operator may apply to tho Secretary for 

2 a tomporary order permitting limited noncompliance with 

3 a standard or any provision thereof promulgated under this 

4 oootion. Such tomporary order shall be granted only if tho 

5 operator files an application which moots tho requirements of 

6 paragraph (3) and establishes that (A) ho io unablo to 

7 comply with a standard by its effective date bocauso of 

8 unavailability of professional or technical personnel or of 
materials and equipment needed to come into compliance 

10 with tho standard or bocauso necessary construction or altora - 

11- tion of facilities cannot bo complotod by tho offootivo dato, 

12 (B) he will guarantee that cmployoos are affordod no loos 

13 than the oamo measure of protection they would havo boon 

14 provided by ouch standard, and (C) ho has an offootivo 

15 program for coming into oomplianoo with the standard as 

16 quickly as practicable. Any tomporary ord e r is s u e d undor this 

17 ouhsootion shall prosoribo tho practic e s, moans, mothods, 

18 operations, and prooossos which th e op e rator must adopt and 

19 ueo whilo tho order is in offoot and stato in detail his pro 

20 gram for coming into oomplianoo with tho standard. Such a 

21 tomporary ordor may bo grantod only aft e r notico to om - 

22 ployooo and an opportunity for a publio hearing ; Providod , 

23 That tho Soorotary may iscno one interim ordor to bo of 

24 fective until a decision ia mado on tho basis of the hearing , 

25 or for sixty days, whiohovor is loss, and tho longth of time 



446 



W 

1 for whioh any suoh intorim ordor may bo in offoot shall bo 

2 doduotod from the period for whioh a temporary order, if 

3 granted, shall bo effective No temporary ordor may be iii 

4 offoot for longor than the period noedod by tbo employer to 

5 Qohiovo oomplianoo with tho standard or nix months, whioh 
(i ovor iii ahortor, oxeept that such an order may be renewed 

7 not more than twioo (i) mo long an the requirements of this 

8 subsection are mot) and (ii) if an application for renewal 

9 is filod at loftBt ninoty days prior to tho expiration dato of the 

10 ordor* No intorim renewal of an ordor may romain in offoot 

11 for longor than ono hundred and oighty days . 

12 " (2) An applioation for a temporary ordor undor this 

13 subsection shall oontain — 

14 " {A) a specification of tho standard and/or portion 

15 thereof from which the employer seeks a noncompliance 

16 order. 

17, " (B) a representation by tho oporator> supportod by 

18 ropreuciitationo from qualified porsonu having firsthand 

19 knowledge of the facta represented, that ho io unable to 

20 comply with the standard or portion thoroof and a do 

21 tailed statomont of tho reasons thorofor, 

2& . " (C) a statomont of tho QtoP3 ho ban taken and will 

ii.3 take (with qpooifio datop) to protoet minoro against the 

24 haaardo oovoroq 1 by tho standard , 

25 " (D) a statomont of wfron ho oxpooto, to bo ablo to 



447 



15 

1 comply with tho Qtandard and what atcpa he hag token 

2 and what stops he will take (with dates specified) to 

3 como into oomplianeo with tho standard, and 

4 " (E) a certification that he has informed his cm 

5 ployccs of tho application hy giving a copy thereof to 

6 thoir authorized representative, posting a statement giv 

7 ing a summary of tho application and specifying where a 

8 copy may bo examined at tho placo or placoo whore no 

9 ticos to employees arc normally posted, and hy other 

10 appropriate moans. 

11 A description of how employees have boon informed shall 

12 bo oontoinod in tho certification. Tho information to om - 

13 ployooo shall also inform them of thoir right to petition tho 

14 Soorotary for a hoaring . 

15 " (o) Any affootod oporator may apply to tho Secretary 

16 for an order for a varianoo from a standard promulgated 

17 under this section. Affootod miners and thoir representative 

18 shall bo given notice of each such application and an oppor 

19 tunity to participate in a hearing. The Secretary shall issue 

20 an order if ho determines on tho record, aftor opportunity for 

21 an inspection w T horo appropriate and a public hearing, that 

22 tho proponent of tho varianoo has domonstratod by a pro 

23 pondoranco of tho evidence that tho conditions, practices , 

24 moans, methods, operations, or proooooes used or proposod 

25 to bo used by an oporator will provido employment and 



448 



16 

1 plaoos of employment to his employees wbioh aro as safo 

2 and hoalthful ao thooo which would provail if ho oompliod 

3 with tho standard. Tho ordor so issued shall proooribo tho 

4 conditions tho oporator must maintain, and tho praotioos , 

5 mcano, mothodo, operations, and proocaooo wbioh ho munt 

6 adopt and utilise to tho extent they differ from tho atandard 

7 in quootion. Such ordor may bo modified or rovokod upon 

8 application by an operator, minor, roprcoontativo of minofs 

9 or by tho Soorotary, in tho manner proscribed for its issuanoo 

10 under thio ouboootion . 

11 " (f) Tho provisions of suboootiono (d) and (o) ohall not 

12 apply with rospoot to any standard onactod by titlo II of thio 

13 Act and in offoot on tho date immodiatoly prior to tho offoo 

14 tivo date of tho Fodoral Mino Safety and Health Amend 

15 monto Aot of 1976 or to any standard promulgated purouant 

16 to that titlo prior to suoh date . 

17 " (g) Any poroon who may bo adversely affoetod by a 

18 standard ioouod undor thio ooetion may, at any timo prior to 

19 tho sixtieth day after suoh standard is promulgated, filo a 

20 potition challenging tho validity of suoh standard with tho 

21 United States court of appeals for tho District of Columbia 

22 circuit or tho circuit whoroin suoh poroon rooidoo or has hifl 

23 principal plaoo of buaincas, for a judicial review of such 

24 standard. A copy of tho petition 3hall be forthwith trang - 

25 mittod by tho olork of tho court to the Secretary. The filing 



449 



17 

^ of fiuoh petition shall not; unlosB othorwieo ordorod by tiio 

2 court, oporato ao a stay of tho standard. No objootion that 

o hao not boon urgod boforo tho Soorotary ohall bo oonsidorod 

4 by tho oourt, unless tho failuro or nogloot to urgo ouoh 

5 objootion shall bo cxouood booauoo of extraordinary oiroum 
P stances. Tho proooduros of this sootion ohall bo tho oxolusivo 
rj moans of challenging tho validity of a standard. 



8 

9 " Seo. 103. (a) The Secretary may appoint advisory 

-^q committees to assist him in his standard 3ctting functions 

H under ocotion 102 (a) of this Act, and to advise him on 

12 other matters relating to safety and health in mines. Each 

13 such advisory oommittoo may inoludo as a mombcr one 

14 or more dooignoos of tho Soorotary of Hoalth, Eduoation, 

15 and Welfare, tho National Buroau of Standards, Department 
IQ of Commerce, and tho National Sci e nc e Foundation, and 
Yi shall inoludo among its mombors porsons qualifiod by oxpcri 
13 cncc and affiliation to present tho viewpoint of operators of 

19 such mines and an e qual number of porsons similarly quali - 

20 ficd to prosont tho viowpoint of workors in such mines, a3 
2i well as ono or moro repr e sentatives of mino inspootion or 

22 safoty agencie s of the State s. An advi s ory committoo may 

23 also include suoh othor persons as tho Soorotary may appoint 
24. who aro qualifi e d by knowledge and experience to make a 
25 useful contribution to th e work of such oommittoo, including 



450 



18 

1 ono or moro representatives of professional organizations of 

2 toohnioians or professionals speciali s ing in safoty or hoalth , 

3 but tho numbor of persons so appointed to any sueh advisory 

4 oommittoo shall not oxocod tho number appointed to ouoh 

5 oommittoo as representatives of Federal and Stoto agonoios . 

6 Any meeting of nuoh oommittoo shall he open to I ho public 

7 and an aoourato rooord shall bo kept and made available to 

8 the publie. No member of such committee (other than rep- 

9 rosentativoo of operators and miners) ohall have an economic 

10 intorost in any proposed rule . 

11 " (h) Persons appointod to advisory committees from 

12 privato life shall bo compensated in the same manner an 

13 consultants or exports under section 8100 of title », United 

14 Statos Codo. Tho Secretary shall pny to any Stato which 

15 is the cmployor of a mombcr of ouch committee reimburse 

16 mont ouffioiont to cover the actual costs to the State resulting 

17 . from such representatives' membership on nuoh committee . 

18 " INSPECTION S , INVESTIGATIONS, AND KEOOItDKEEPING I 

19 " Seo. 101. (a) In order to carry out the purposes of 

20 this Act, tho Secretary or tho Socrotary of Hoalth, Educa 

21 tion, and Welfare, or an authorized roprosontativo of cither , 

22 upon prosonting appropriate credentials to the owner, oper 

23 ator, or agent in chargo, is authorized — 

24 " (1) to ontor without dolay any mino subject to 

25 thio Act; and 



451 



19 

1 " (2) to inspect and investigate any mine and nil 

2 pertinent eonditionn, structures, machines, apparatus, d o 

3 vices, equipment, rocords, and materials therein, and to 

4 consult privately with any such operator, owner, agent , 

5 or minor. In carrying out the requirements of thin sco - 

6 tion in each mine, the Secretary shall make inspections 

7 of tho ontiro mino at loast four times a year. xVdvance 

8 notioo of any inspection shall not bo given, except that 

9 tho Soorotary of Hoalth, Education, nnd Welfare mny 

10 give advanced notioo of inspections conducted in conncc 

11 tion with or for tho purpose of rosoaroh or technical 

12 aaoistanco . 

.jo " (b) In making his investigation!) of accidents or other 

14 OGOurroncos relating to health or s afety in a mino under 

15 this Aot, tho Soorotary may require tho attendance and tcati 
-.p mony of witnossoo and tho production of evidence under 
Yj oath. Witnossos shall bo paid tho samo foos and mileage that 
..g arc paid witneoooo in tho courts of tho United States. In 
.jo caoo of a contumacy, failuro, or Tofusal of any poison to 
20 obey such an order, any district court of tho United States 
ty. or tho United Stat es courts of any territory or possession , 
oo within tho jurisdiction of which such por s on is found, resides , 

23 or transacts business, upon the application by the Score - 

2 4 tary, shall havo jurisdiction to issuo such porson an order 

25 requiring auoh porson to appear to produce evidence if, as , 



452 



20 

1 and whon b o ord e red, and to give testimony relating to 

2 tho mattor undor invootigation or in question, and any failure 

3 to obey such order of the court may be punished by said 

4 oourt as a contempt tboroof . 

5 " (o) (1) Each oporator ohall make, koop and preserve , 
G and mako availablo to tho Soorotary or tho Soorotary of 

7 Health, Education, and Welfare, auoh rooordfl regarding hig 

8 aotivitioo relating to this Act ao tho Soorotary, in eoopera 

9 tion with tho Soorotary of Health, Education, and Welfare , 

10 may proooribo by regulation an noooooary or appropriate 

11 for tho onforoemont of thio Act or for developing informa 

12 tion rogarding tho causes and provontion of occupational 

13 accidents and illncsgca in the mines subject to this Act. In 

14 order to carry out the provisions of this paragraph ouch 

15 regulations may includo provisions roquiring oporatoro to 

16 oonduot periodic inspections . 

17 " (2) The Soorotary, in oooporation with tho Soorotary 

18 of Health, Education, and Wolfaro, ohall proooribo regulations 

19 requiring oporntors to maintain aocurato rooordo of and to 

20 make poriodio reports on, w^ork - relatod doaths, injuries, and 

21 illnesses other than minor injuries roquiring only - first aid 

22 treatm e nt and which do not involvo m o dieal troatmont, I033 

23 of consciousness, restriction of work or motion, or transfer to 

24 another job in tho mines subject to this Act. 

95 " (8) Tho Secr e tary, in cooperation with tho Score tary 



453 



21 

1 of Health, Education, and Welfare, shall issuo regulations 

2 re quiring operators to maintain accurate records of employee 

3 e xposures to potentially toxio materials or harmful physical 

4 ft gonts which are required to bo monitored or moasurod under 

5 any applicable hoalth and safety standard promulgated under 

6 this Aot. Suoh regulations shall provido minors or their ropro 

7 aontativos with an opportunity to oboervo suoh monitoring or 

8 measuring, and to have access to the records thereof. Such 

9 rogulationo shall also make appropriate provision for caoh 

10 minor or former minor to have access to such records as will 

11 i ndicate his own oxposuro to toxic materials or harmful physi 

12 oal agonte. Each operator shall promptly notify any minor 

13 who has been or is being oxpoood to toxio matorialo or harm 

14 fid physical agents in concentrations or at levels which exoccd 

15 those prescribed by an applicable hoalth and safety standard 

16 promulgated undor section 102, or mandated undor title II, 

17 a nd shall inform any minor who is boing thus exposed of the 

18 oorrootivo action boing takon. 

19 "(4) All accidents^ including unintentional roof falls 

20 (except in any abandon e d pan e ls or in area s which aro 

21 inaooossiblo or unsafe for inspootions) , shall bo investigated 

22 by the oporator or his agont to dotormino the cause and 

23 tho moans of preventing a r e currenc e. E e corde of such aooi 

24 dents, roof falls, and inve s tigation s s hall b e kopt and tho 

25 information shall b e made av a ilable to the Secretary or his 



454 



22 

1 authorized roprosontativo and tho appropriate State agency. 

2 Such records rhall bo opon for inspection by intoroutod 

3 persons i 

4 (d) Any information obtained by the Soorotary, or by 

5 tho Soorotary of Health, Education, and Wolfaro under this 

6 Act nhall bo obtained in nuch a manner as to impose a - mini - 

7 mum burdon upon oporators, oc . pooially thooo operating small 

8 business consistent with the underlying purpoooo of thio Act. 

9 Unnooosoary duplication of effort in obtaining information 

10 nhall be reduced to the maximum oxtont foaoiblo. 

11 "( e ) Subj e ct to r e gulation s i ss u e d by tho Soorotary, a 

12 roprosontativo of th e op e rator and a roprosontativo au 

13 thorizod by his minors shall bo givon an opportunity to 

14 accompany the Secretary or his authorized ropreoontativc 

15 during tho physical inspection of any mino under sub 

16 section (a) for tho purposo of aiding ouch inspection. Where 

17 there is no authorized minor representative^ tho Secretary or 

18 bio authorized roprosontativo shall consult with a roaoon - 

19 ablo numb e r of min e rs concerning matters of health and 

20 safety in tho mino. Such repr e sentative of minors who is 

21 aloo an employ e e of th e operator shall cuffor no loss of pay 

22 as a r e sult of hi s participation in the phy s ical inspection mado 

23 undor this subsoction. To th e e xtent that tho inopootor deter 

24 mines that mor e than one repre s entativ e from oach party 

25 would further aid the in s pection, he can permit each party 



455 



23 

1 to havo an oqual number of such additional roprosontativco. 

2 However, only ono ouch representative of minora who is 

3 an employee of tho operator shall bo entitled to suffer no loos 

4 of pay ao a result of ouch participation under tho provisions 

5 of this subsection. Compliance with this oubsootion shall not 

6 bo a jurisdictional prerequisite to the enforcement of any pro ~ 

7 vision of this Act. 

8 " (f ) (1) Any minors or representatives of minors who 

9 believe that a violation of a hoalth or safety standard 

10 oxisto that threatens harm, or that an imminent dangor 

11 exists, may request an inspection by giving notice to the 

12 Secretary or his authorized representative of such violation 

13 or dangor * x\ny such notice shall bo roducod to writing, shall 

14 sot forth with roasonablo particularity tho grounds for the 

15 notice, and shall bo sign e d by the min e rs or roprosontativo 

16 of minors, and a copy shall be provided tho operator or his 
1? agont at tho timo of inspection, except that, upon tho roquost 

18 of the p e rson giving such notice, his name and tho names 

19 of individual miners referred to therein s hall not app e ar in 

20 such copy or on any record publi s h e d, roloasod, or made 

21 availablo pursuant to subsection (g) of this soction. If upon 

22 rocoipt of such notification the S e cr e tary dotorminos thoro 

23 are reasonabl e grounds to beli e v e that such violation or dan 

24 gor oxists, ho shall mak e a special inspection in accordance 

25 with tho provisions of thi s s ection a s s oon a s practicabl e , to 



456 



24 

1 dotormino if suoh violation or danger oxioto. If the Secretory 

2 determines tboro are no reasonable grounds to boliovo that a 

3 violation or danger exists ho shall notify the minora and 

4 reprooontotivo of tho minors in writing of such determination. 

5 " (2) Prior to or during any inspootion of a mine, any 

6 min e rs or r e pr e sentativ e s of min e rs e mploy e d in suoh mine 

7 may notify th e Secr e tary or any r e pres e ntative of tho See 

8 rotary responsible for oonduoting tho inspection, in writing, 

9 of any violation of thi s Act or of any imminent dangor 

10 which they have reason to boliovo oxioto in suoh mine. The 

11 Socrotary shall> by regulation, establish procedures for in - 

12 formal roviow of any refusal by a representative of tho Score 

13 tary to ioouo a oitation with rospoot to any ouch alleged 

14 violation or ordor with rospoot to suoh dangor and shall 

15 furnish tho minors or repres e ntative of minors roquooting 

16 such roviow a written statement of tho reasons for tho Sec 

17 rotary's final disposition of tho oasoi 

18 • ' (g) (1) Th e Secr e tary and Socrotary of Hoalth, Edu 

19 cation^ and Welfare aro authoriz e d to compile, analyzo, and 

20 publish) oithor in summary or d e tailed form, all roporto or 

21 information obtainod undor this sootion. 

22 " (2) Tho Soorotary and tho Socrotary of Hoalth, Edu - 

23 cation, and Wolfaro shall each prescrib e such rulos and rcgu 
^4 lationa ao thoy may doom nec e ssary to Garry out thoir rospon - 



457 



25 

1 Labilities under this Act. including rule: and rogulationj 

2 dealing with the inspection of mines subject to thb Act 

3 "(b) Whenever the Secretary finds that a mine liberates 
•1 e xcessive quantiticc of methane or other explosive gaoos dur 

5 ing its - operation: ' , or that a methane or other gao ignition or 

6 explosion hag occurrod in such mine which resulted in death 

7 or serious injur}' at any time during the previous five year:*, or 

8 that there exists in such mine some other especially hazardous 

9 condition, he shall provide a minimum of one spot inspection 

10 by his authoriz e d r e pr e s e ntative of all or part of such mine 

11 during — e very — fi^e — working — day* — at — irregular — interval l 

12 For purposes of this subsection, liberation of excessive quan 

13 s ides of methane or other explosive gases shall m e an liberation 
M of more than one million cubic feet of methane or other 
IS explosive ga^cs during a twenty four hour period: Provided, 
M however, That when the Secretory finds that a mine liberates 
™ more than five hundred thousand cubic feet of methane or 

18 other explosive gases during a twenty four hour period, 

19 he shall provide a minimum of one spot inspection by m*3 

20 authorized r e presentative of all or part of such mine every 
-1 ten working days at irregular int e rvals; Provided furthev, 

22 That when the Secretary finds that a mine liberates more 

23 than two hundred thousand cubic feet of methane or other 
84 explosive gases during a twenty - four hour period,, he shall 



458 



26 

1 provide a minimum of ono spot inspootion by his authorized 

2 roprooontativo of all or part of such mino ovory fifteen work - 

3 ing days at irroguktr intervals. 

4 " (i) In tii o ovont of any acoidont — (whothor or not 

5 resulting in an injury or death) — occurring in a mine, the 

6 oporator shall promptly notify the Secretary thereof and 

7 shall take appropriate measures to pro vent the destruction 

8 of any evidence which would assist in investigating the 

9 e auso or causes th e r e of. In tho ev e nt of any accidont oo - 

10 ourring in a mine wh e re resouo and rooovory work i s 

11 n e o e ssary, the S e cretary or an authorized r e prosontativ e of 

12 tho S e orotary shall take whatev e r action ho dooms appro - 

13 priato to protect tho lifo of any poison, and ho may, if ho 

14 dooms it appropriat e , s upervi se and direct the roscuo and 

15 tooovory aotivity in ouch min e * 

16 " , (j) In tho event of any accid e nt occurring in a mino, 

17 an authorized r e presentative of the Secrotaty, when prosont, 

18 may i ss ue s uch orders as he deems appropriate to insure 

19 Ao saf e ty of any person in the mine, and tho oporator of 

20 auoh mino shall obtain the approval of s uch roprosontative , 

21 in consultation with appropriate State reprocontativos, when 

22 foasiblo, of any plan td recover any person i n the mine or 

23 to recover the min° nr v***"™ flffprtpd qrppg nf thn mino . 

24 to normal. 



459 



27 

1 "citation s and orders 

2 "Seo. 105. — (a) (1) If, upon inspootion or invostiga 

3 tion, tho Soorotary or hio authorized representative bolicvcj 

4 that an operator of a mino subject to this Act hoc violatod 

5 this Act, or any rule, order, or regulation promulgated 

6 p ursuant to this Act, he shall, with reasonable promptness, 

7 issuo a citation to th e operator. Each citation shall be in 

8 writing and shall describe with particularity the naturo of 

9 tho violation, inoluding a roferonco to tho provision of the 

10 Aot, standard, rulo, r e gulation, or ord e r alleged to have 

11 b oon violatod. In addition, th e citation shall fix a reason 

12 ab le tim e for the abatement of tho violation. 

13 " (2) If a citation undor section 105 (a) ( 1 ) is issued for 

14 a violation which tho Secretary or hi s authorized roprosonta - 

15 tivo beli e v e s to have been willfully committed, or committed 

16 with gross negligence, and to have subjected a minor or 

17 minors to an imminent danger, the Secretary or hio author 
16 izod roprosontativ e shall includo in th e citation a ohargc that 

19 the violation was willfully committed, or committed with 

20 gross n e gligence, and that it s ubjected a miner or minora to 

21 an imminent danger, with a specific d e scription of tho danger 

22 or dangoro involvod. 

23 "(b) If upon any followup inspection of a mine, an 

24 authoriz e d repre s entative of the Secretary finds ( 1 ) that a 

25 v iolation d e scribed in a citation i ss ued pursuant to subsection 



20-040 O - 78 - 



460 



28 

1 (a) has not boon totally abated within tho period of time 

2 m originally fixed tboroin or ao oubooquontly oxtondod, and 

3 (2) that the period of time for the abatement should not be 

4 further extended, he ohall find the extent of tho area affcotod 

5 by the violation and shall promptly issue an ordor roquiring 

6 tho operator of ouch mine or hio agent to immediately oauoc 

7 all persons to ho withdrawn from> and to bo prohibited from 

8 entering sueh area until an authoriz e d r e pr e s e ntative of th e 

9 Secretary determines that such violation has boon abatod, 

10 oxcopt tho following poroona ; 

11 "(1) Any p e rson whos e pre se nc e in such area i s 

12 necessary, in the judgmont of tho operator of tho mine, 

13 or an authorized repres e ntative of tho Soorotary, to 

14 eliminate tho danger described in ordor; 

15 "(2) Any public official whoso official duties ro 

16 quire him to on tor such aroa; or 

17 " (3) Any l e gal or t e chnical consultant, or any r e p - 

18 rosontativo of the employees of th e min e , who is a cor - 

19 tified person qualifiod to mako mine examinations, or i3 

20 accompanied by such a person, and whoso prosonoo in 

21 such area is nece ss arjr, in the judgment of th e operator 

22 of the mino or an authoriz e d representative of the Sec 

23 rotary, for th e proper investigation of tho conditions 
dosoribod in the order > 
" (o) (1) In the case of a violation of any eafetjr or 



25 



461 



29 

1 koalth standard which ia of such nature a3 could significantly 

2 and substantially contribute to the oauoo and offoot of a mine 

3 safety or health hazard, and which is oauood by an unwar 

4 ranted failure of such operator to comply with such safoty 

5 or health standards, tho citation shall includo a statomont to 

6 that offoot. If, during tho sam e insp e ction or any subs e quent 

7 insp e ction of such mine within ninoty days after the issuanc e 

8 of such citation, an authorized representative of tho Secretary 

9 finds anothor violation of any oafoty or hoalth standard and 

10 finds ouoh violation to bo also oausod by an unwarranted 

11 failuro of such oporator to so comply, h e shall forthwith issue 

12 an order requiring tho oporator to causo all persons in the 

13 area affootod by such violations, oxcopt thoso persons referred 

14 t o in subsection (b) of this soetion, to bo withdrawn from, 

15 and to bo prohibited from entering, s uch area until an author - 

16 izod representative of tho Secretary det e rmines that such 

17 violation has boon abated . 

18 "(2) If a withdrawal order with r e spect to any aroa 

19 in a mino has boon issu e d pursuant to paragraph ( 1 ) of this 

20 s ubs e ction, a withdrawal order s hall promptly b e i ss ued by 
2i an authorizod repres e ntativ e of tho Secr e tary who finds upon 

22 any subs e qu e nt in s pection the exi s tence in the min e of 

23 othor unwarranted violations until s uch time as an insp e c - 

24 tion of such min e disclose s no s uch violations . Following an 

25 inspection of the mine which di s clo s es no unwarranted vioja- 



462 



30 

1 tions, tho provision s of paragraph — (4-) — of thin nuboootiou 

2 shall again bo applicable to that mino. 

3 " (d) During tho abatomont poriod for a violation of tho 

4 applicable limit on tho concentration of ronpirablo dust, tho 

5 operator of tho mino r . hall oauno namplon described in noction 

6 302(a) of thin Act to bo token of tho afTootod area during 

7 oaoh production shift. 

8 "Ao noon an ponnihlo after an ordor relating to failure to 

9 abato oxoossivo dust concentrations in ir . ouod, tho Sooro 

10 t a ry, upon r e qu es t of th e op e r a tor , shall dispatch to th e mine 

11 i nvolved a poroon or team of porsons, to tho extent ouch 

12 persons are available, who are knowlodgoablo in tho methods 

13 a nd moans of controlling and reducing ronpirablo duot. Such 

14 p croon or team of poroonn ohall remain at the mine involved 

15 for such timo as they shall doom appropriate to assist the 

16 operator in reducing rocpirablo dust concentration. While 

17 at the mino, such persons may roquiro tho oporator to take 

18 cuoh actions as thoy doom appropriate to inouro tho health 

19 of any poroon in the mine. 

20 " ( e ) (1) — If, upon any insp e ction or investigation pur - 
2i suant to section 101 of this Act, tho Secretary or an author - 

22 izod roprosontativo shall find omployod at a mine a miner 

23 who has not rocoiv e d tho roquisito safety training und e r eoc - 

24 tion 317A of this Act, th e S e cr e tary or an authorized ropro - 

25 sentativo shall ksuo an ordor under this sooti on which floolarQ 



463 



31 

1 ouoh minor to bo a hazard to himself and to others, and 

2 ■ requiring that ouoh minor bo immcdiatoly withdrawn from 

3 tho mino, and bo prohibited from entering tho mino until an 

4 authorizod representative of the Secretary determines that 

5 ouoh minor has roooivod tho training required by section 

6 ■ 317 A of this Act. 

7 " (2) No minor who i3 ordered withdrawn from a mino 
•8 • under paragraph ( 1 ) of this subsection shall b e discharged 
9 ■ or othorwioo discriminated against because of 3uch order; 1 

10 and no minor who io ordorod withdrawn from a mine under 

11 ' paragraph ( 1 ) of this subsection shall suffer a loss of com - 

12 - ponsation during the period ncoo33ary for such miner to 

13 ■ roooivo ouoh training and for an authorized representative 

14 of tho Secretary to dotorminc that such miner has received 

15 tho roquisito training. 

16 "(f) Each citation or order issued under this section, or 

17 a copy or copies thoroof, shall bo ■ prominently pootod in 

18 accordance with soction 110 of this Act, and ao prescribed in 

19 regulations issued by tho Secretary. - 

20 "(g) No oitation may bo issued under thio section after 

21 the expiration of oix months following the occurrence of any 

22 violation. 

23 "(h) Any order issued under subsection (b) or (c) 

24 shall remain in effect until revoked by the Secretary or modi " 



464 



32 

1 ■ fied or vacated by the Commiooion or tho oourto pursuant to 

2 section 100(c) or 107(a). 

3 ' "rnooEDunfl for enforcement 

4 " S ec. 10ft. (a) If, after an inspection or investigation 

5 ■ the S e cretary issues a citation or order under section 105, 
G he shall within a reasonable time after tho termination of 

7 such inspection or investigation, notify the operator by oor 

8 tified mail of the civil penalty proposed to be assessed under 

9 ■ section 111 (a) for the violation oitcd and that the operator 

10 has fifteen working days within which to notify the Secretary 

11 that he wishes to contest the citation or proposed asooramient 

12 - of penalty. If the citation contains a ohorgo under ocotion 

13 105(a) (0), the S ecretary's notification under the oubsco 

14 tion shall include a proposed civil penalty closure order 

15 under section 111 (d) — ill addition to the proposed civil 

16 monetary penalty. If, within fifteen working days from the 

17 receipt of the notice issued by tho Secretary, the operator 

18 fails to notify tho Secretary that ho intendo to contest tho 

19 citation or tho proposed penalty or penalties, and no notice 
2Q is filed by any employee or representative of employees 
2i -tinder subsection (c) of thio ocotion within auoh f timo, the 

22 * citation and the penalty or penalties, as proposed, shall be 

23 deemed a final ordor of tho Commission and not subject to 

24 review b} T . any court or agonoy. Eofuoal by the operator or 

25 hi3 agent to accept certified mail containing a notice under 



465 



33 

1 *■ thi3 subsection shall constitute receipt thereof within tfao 

2 meaning of this subsection. 

3 *- (b) If the Secretary has reason to believe that an opcr 

4 ator has failed to correct a violation for which a citation has 

5 boon issued within the period permitted for its correction 

6 (which period shall not end until the entry of a final order by 

7 ■ tho Commission, in the case of any review proceedings under 

8 this section initiated by the op e rator wh e r e in the Commission 

9 ordors, after an oxpoditcd hearing, the suspension of tho 

10 abatomont requirements of the citation after determining that 

11 ■ tho operator will suffer irreparable loss or damage from the 

12 application of those requirements) , the Secretary shall notify 

13 tho operator by certified mail of such failure and of the 

14 - penal ty proposed to be assessed under section 111 by reason 

15 of such failure, and that the operator has fifteen working 

16 days within which to notify the Scorotary that ho wishes to 

17 ■ contest the Secretary's notification or tho proposed assessment 

18 of penalty. If, within fifteen working days from the receipt of 

19 notification issued by the Secretary, the operator fails to 

20 notify tho Secrotary that ho intondo to contest tho notification 

21 or proposed assessment of penalty, tho notification and aoooss 

22 ■ ment, as proposed, shall be deemed a final order of the Com 

23 mission and not subject to review by any court or agonoy. 

24 < Refusal by the operator or his agent to accept certified mail 

25 containing a notification issued undor this subsootion shall 



466 



34 

1 r constitute — receipt — thereof — within — the — meaning — of — this 

2 nubflootion. 

3 - "(o) (1) No person shall dioohargo or in any manner 

4 - d iscriminate against or intorfore with the exorcise of th e 

5 otatutory righto of any mino omployoo or applioant for em — 

6 ploymcnt subjeot to thig Act because such e mploy ee has fil e d 

7 or made a complaint under or rolatod to this Act, including 

8 ■ a complaint notifying the oporator or tho operator's agent, 

9 or the employee's labor or health and safety representative 

10 of an alleged danger or safety or health violation in the min e , 

11 « or because such omployoo in tho nubjoot of modioal ovalua — , 

12 tion3 and potential transfer under a standard published pur — 

13 * suant to section 102(a) — of thin Act, or because such 

14 - employee has instituted or caused to bo instituted any pro — 

15 -occding undor or rolatod to this Act or has tootifiod or is 

16 about to testify in any such proceeding, or because of the 

17 ■ exercise by such employee on behalf of himself or others of 

18 ■ any statutory right afforded by thio Act. 

19 " (2) Any mine employee or applicant for employment 

20 ■ who believes that ho hao boon discharged, interfered with, 

21 > or otherwise discriminated against by any person in viola - 

22 ^ tion of this subsoction may, within thirty days after suoh 

23 - violation occurs, file a complaint with tho Soorotary alloging 
^4 ■■ such disoriinincttion, Upon r e ceipt of such complaint, tho 
25 S e cretary 3hall cause suoh investigation to be made as he 



467 



35 

1 ^ doomo appropriate. If upon such investigation, tho Score 

2 ■ tary determines that the provisions of this subsection have 

3 been violated, he shall immediately file a complaint with the 

4 Commission, with service upon the alleged violator and the 

5 mine employee or applicant for employment, alleging guch 

6 discrimination or interference and proposing an ord e r grant - 

7 ing appropriate relief. The Commission shall afford an op - 

8 portunity for a hearing (in accordance with section 554 of 

9 ■ title 5, United States Code, but without regard to subsection 

10 - (a) (3) of 3uch section) and thereafter shall isgue an ord e r. 

11 basod upon findings of fact, affirming, modifying, or vacating 

12 - the Secretary's proposed order, or directing other appropri - 

13 ate relief; and such order shall become final thirty days after 

14 ■ . its issuance. The Commission ohall have authority in such 

15 proceedings to require a person committing a violation of 

16 this subsection to take such affirmative action to abate th e 

17 * violation as the Commission deems appropriate, including, 

18 but not limited to, tho rohiring or reinstatement of the 

19 - employee to his formor position with back pay and interest. 

20 The complaining e mploy ee or applicant may prooont addi 
21* tional ovidoneo on hi s own behalf during any hoaring hold 
22 > pursuant to this paragraph* 

23 - "(3) Within ninety day3 of the receipt of a complaint 

24 ' fil e d under paragraph (2) of this subBootion, tho Secretary 

25 shall notify the mine emplojree or applicant for omploymont, 



468 



36 

1 in writing, of hio determination whether a violation has oo 

2 ourrod. If the Secretary, upon investigation, determines that 

3 * the provisions of thin : - ml>:iection have not been violated, the 

4 -complainant shall have the right, within thirty day3 of notice 

5 ■ of the Secretary's determination, to file an action in his own 
G behalf before the Conmiimion, charging di s crimination or 

7 ' int e rference in violation of paragraph ( 1 ) of this subsection. 

8 • The Commission shall afford an opportunity for a hearing 

9 ■ (in accordance with section ool of title 5, Unitod Statoo 

10 Oode, but without regard to subsection (a) (3) of such see 

11 - tion), and thereafter t' hall im-aie an order, based upon rind 

12 ings of fact, dismissing or sustaining the complainant's 

13 ■ ohargos and, if tho ohargos aro sustained, granting ouch relief 

14 -a s it d ee ms appropriate, including , but not limit e d to, an 

15 - order requiring tho rehiring or roinstatoment of the mine 

16 omployoo or applicant for omploymont to bin former position 

17 -with back pay and intorost. Such ordor shall become final 

18 thirty days after its issuance. Whonovcr an order is issued 

19 - ouotaining tho employe e 's charg e s undor this paragraph, a 

20 • sum equal to tho aggrogato amount of all oooto and expenses 
2i (including attornoy's foos) as dotorminod by the Commi s- 

22 si on to havo boon reasonably incurrod by the mine employee 

23 or applicant for omployment for, or in connection with, the 

24 institution and prosocution of such proceedings shall be 

25 assessed against tho porson committing such violation. Pro - 



469 



37 

1 ■g ocodinga under tlii3 section shall be expedited by the Sccrc 

2 - tary and tho Commission. Any order issued by the Commi3 

3 sion undor this paragraph shall bo cubjoot to judicial roviow 

4 ■ in aooordanoo with oootion 107 of this Act. Violations by any 

5 ■ porson of paragraph ( 1 ) of this subsection shall be subject 

6 ■ to tho provisions of section 100 and 111 (a) of thi3 title.". 

7 "(d) If, within fifteen working days of rcocipt thereof, 

8 ■ an operator of a mine notifies the Secretary that he intends to 

9 oontoot tho issuance or modification of an order issued under 

10 - section 105, or a notification issued under subsection (a) or 

11 (b) of this section, or the reasonableness of the length of 

12 abatement time fixed in a citation or modification thereof 
lo issued undor scotion 105, or any minor or representative of 

14 miners notifies the Secretary of an intention to contest the 

15 ■ issuance, modification, or termination of any order issued 

16 undor oootion 105> or tho roasonablonosc of tho length of time 

17 ■ set for abatement by a citation or modification thereof i33ucd 

18 ■ under scotion 105, tho Secretary shall immediately advise 

19 ■ the Commission of such notification, and the Commission 

20 shall afford an opportunity for a hoaring (in accordance with 

21 ■ oootion 55 1 of titlo b } United States Code, but without regard 

22 to subsection (a) (3) of such oootion), and thereafter shall 

23 » issue an order, based on findings of faot, affirming, modifying, 

24 or vacating the Secretary's citation, order, or proposed pen 

25 alty, or directing other appropriate relief; such order shall 



470 



38 

1 • booomo final thirty days aftor its issuance Tho rulos of prooo — 

2 dure prescribed by the Commi ss ion s hall provid e affected 

3 - minors or representatives of aff e ct e d min e rs an opportunity 

4 to participate as parties to hoaringo under thin oootion. Tho 

5 - Commission ohall — take — whatever action — is necessary to 

6 • oxpodito proceedings for hearing appeals of orders issued 

7 under section 105. Tho Commission may not grant temporary 

8 relief from the issuance of any order under subsection 105 (o) 

9 - of this Act. 

10 "JUDICIAL IM8VIBW 

11 "Sbc. 107. (a) Any per s on adversely affected or ag — 

12 griovod by an order of the Commission issued under thi s Act 

13 - may obtain a roviow of suoh ordor in any United States oourt 

14 ■ of appoalo for tho circuit in which tho violation is allogod to 

15 ■ have ooeurrod or where the operator has its principal office, 

16 or in the United States Court of Appeals for the District 

17 of Columbia Circuit, by filing in ouch oourt within thirty 
lg ■ days following the issuance of suoh order a written petition 

19 - praying that tho ordor bo modifiod or cot aoido. A copy of 

20 ouch petition shall bo forthwith transmitted by tho olork of 
2i - the oourt to the Commission and to tho other parties, and 

22 - thereupon tho Commission ohall file in tho oourt the record 

23 in the proceeding as provided in section 3112 of title 28, 

24 ■ United Stafo3 Code. Upon ouch filing, tho oourt ohall have 

25 exclusive juriodiotion of th e procooding and of tho question 



471 



39 

1 ■ determined therein, and ohaJl have power to grant ouoh torn 

2 por a ry roliof or restraining ordor ao it dooms juot and propor, 

3 * and to mako and enter upon tho pleadings, testimony, and 

4 proooodingo sot forth in ouoh record a dooroo affirming, m edt- 

5 fying, or ootting aoido, in wholo or in part, the ordor of the 

6 Commiggion and enforcing tho oamo to tho oxtont that such 

7 ■ order is affirmed or modified. The commencement of proceed - 

8 ingg under this subsection shall not, unless ordered by the 

9 -court, oporato as a stay of tho ordor of tho Commiggion. No 

10 o bjection that has not boon urged before tho Commission 

11 ■ ohall bo oonoidorod by tho oourt, unlooo tho failuro or nogloot 

12 to urgo such objootion ohall bo oxouood booaugo of oxtraordi 
li> nary oiroumatanoofl. Tho findings of tho Commission with re - 

14 Gpoot to quootiong of faot, if oupportod by substantial evidence 

15 on tho record considered as a whole, shall be conclusive. If 

16 ■ any party ghall apply to tho oourt for loavo to adduce addi - 

17 tional ovidonoo and ohall ohow to tho satisfaction of tho oourt 

18 - » that such additional ovidonoo is material and that there wcro 

19 roasonablo grounds for tho failuro to adduoo ouoh ovidonoo in 

20 ■ the hearing boforo tho Commission, tho oourt may order such 

21 additional ovidonoo to bo takon boforo the Commiggion aad- 

22 to bo mado a part of th e r e cord . Th e Commission may modify 

23 ito findings as to th e f a ct e , or mak e n e w findings, by roason 

24 ■ of additional ovidonoo so takon and filod, and it shall file 

25 ouoh modifiod or new findings, which findings such roopoot 



472 



40 

1 to question of fact, if supported by substantial evidence on 

2 tho rooord oonoidorod ao a wholo, ohall bo oonoluoivo. Tho 

3 Commission may modify or act aside its original order 

4 ■ by reason of such modified or new findings of fact. Upon 

5 the filing of the record with it, after s uch remand proceedings, 

6 the jurisdiction of tho court shall be exclusive and its judg - 

7 ment and decree shall be final, except that the same shall be 
3 subject to review by the Supreme Court of the United State s , 
9 as provided in oootion 1251 of titlo 2 8 , Unitod States Code. 

10 ■ Petitions filed undor thio subsection ohall be heard expedi - 

11 tiously. 

12 " (b) The Soorotary may aloo obtain roviow or enforce - 

13 ment of any final ordor of tho Commission by filing a 

14 ■ petition for such roliof in the United States court of appeals 

15 for tho oirouit in which tho allogod violation ooourrcd or 

16 "in which tho oporator has its principal offioo or in tho Court 

17 of Appeals for tho District of Columbia Circuit, and the pro - 
18. vision of subsootion (a) shall govorn such proceedings to 

19 the extent applicable. If no petition for roviow, as provided 

20 ■ in subsootion (a) , is fil e d within thirty days aftor issuance 

21 of the Commissioner's ordor, tho Commission's findings of 

22 ■■ faot and order s hall b e conclusiv e in conn e ction with any 

23 petition for onforoomont which is filod by tho Secretary 

24 ■ jiftor tho oxpiration of such thirty - day poriod. In any ouch 

25 case, as well as in tho oaso of a nonoontcatod citation or 



473 



41 

1 notification by tho S e cretary which has become a final order 

2 of the Cornmission under subsection (a) or (b) of section 

3 106, tho clerk of tho court, unless otherwise ordered by tho 

4 court, shall forthwith ent e r a decree enforcing tho order and 

5 shall transmit a copy of ouch decree to the Secretary and the 

6 operator named in tho petition. In any contempt proooodi ag 

7 brought to enforce a decroo of a court of appeals ontored 

8 pursuant to this subsection or subsection — (a), tho court 

9 of appeals may assess tho p e nalti e s provid e d in s e ction 

10 111, in addition to invoking any other availablo romodios. 

11 "PBOCEDUHES TO COUNTERACT DANGEROUS CONDITION S 

12 "SeO. 108. (a) If, upon any inspection or investigation 

13 of a mine which is subject to this xlct, an authorized ropro 

14 sontativo of the S e cretary finds that conditions of practices 

15 in such mine are such that an immin e nt dang e r exists, such 

16 repr e s e ntative shall det e rmine tho oxtont of tho area of such 

17 mine throughout which th e danger oxists, and issuo an order 

18 requiring tho operator of such mino to oauoo all persons, 

19 except thos e rof e rrod to in section 105 (b) , to bo withdrawn 

20 from, and to bo prohibited from entering, such area until 

21 an a uthoriz e d repres e ntative of th e S e cretary dotorminos th a4- 

22 such imminent dangor no long e r oxists. Tho issuanoo of an 

23 ordor under this subs e ction shall not precludo tho issuanoo 

24 of a citation und e r s e otion 105 or tho proposing of a penalty 

25 under oootion 111. 



474 



42 

1 "(b) (1) If; upon any insp e ction or inv e stigation of a 

2 mino, an authoriz e d representative of tbo Soorotary finds 

3 -fA-) — thot potentially dangoroua oonditiono oxiot thoroin 

4 whioh havo not yot rosultod in an imminont dang e r, (B) 

5 that ouob oonditions cannot bo offootivoly abatod through 

6 tho uoo of oxiflting technology, and — {Q) — that reasonable 

7 aoournnoo cannot bo provided that the oontinuanoo of mining 

8 op e ration s und e r s uch oondition s will not r e sult in an in> 

9 minont danger, ho shall dotormino tho aroa throughout whioh 

10 ouch oonditions oxist, and th e r e upon issue a notic e to th e 

11 operator of tho mino or hi 6 agent of such oonditions, and shall 

12 file a oopy thoroof, incorporating hie findings thoroin, with 

13 tb f o S e crotary and with tho roprosontativos of tho minora of 

14 such minot Upon roooipt of suoh copy, the S e orotary shall 

15 oauso suoh further investigation to b e mad e a s ho d ee ms 

16 appropriate, including an opportunity for tho op e rator or a 

17 roprosontativo of tho min e rs to proeent information r e lating 

18 to suoh notic e. 

19 " (2) Upon tho oonolusion of ouch investigation and an 

20 opportunity for a public hearing upon request by any intor - 

21 ootod party, th e S e cr e tary shall mako findings of fact, and 

22 ohall, by dooioion incorporating such findings thoroin, oithor 

23 oanool tho notic e issu e d und e r this subs e ction or issue an 

24 ordor roquiring th e op e rator of such mino to oauso all poroono 

25 in th e aroa aff e cted, e xc e pt thos e p e rsons roforrod to in soo 



475 



43 

1 tion 105 (b) , to bo withdrawn from, and bo prohibited from 

2 ontoring, ouoh aroa until tho Soorotary, after a publio hoaring 

3 affording all interested persons an opportunity to prosont 

4 thoir views, dotorminos that such conditions hav e b ee n 

5 abated. Any hoaring undor this paragraph shall bo of record 

6 and shall bo subjoot to sootion 551 of titlo 5 of tho United 

7 States Codo but without rogard to ouboootion (a) (3) i 

8 " (o) Findings and orders issued purouant to subsection 

9 (a) of this sootion shall contain a dotailod dosoription of tho 

10 conditions or praotioos which oauso and oonstituto a situation 

11 of imminent danger, and all orders issuod pursuant to this 

12 sootion shall contain a dosoription of tho area of th e min e 

13 throughout which porsons must bo withdrawn and prohibit e d. 

14 " - (d) Each finding mado and ordor issued undor thifl 

15 soction shall bo givon promptly to tho oporator of tho min e 

16 to whioh it portains by tho porson making such finding or 

17 ordor, and all of such findings and ordoro shall bo in writin g? 

18 and shall bo signed by tho porson making thoim Any order 

19 issued pursuant to subsoction (a) or (b) may b e annull ed^ 

20 oancolod, or rovisod by an authorized r e pres e ntative of th e 

21 Soorotary. Any ordor issuod und e r s ubs e ction (a) or (b) 

22 shall remain in e ff e ct until r e voked by the S e cr e tary or 

23 modified or vaoatod by tho Commission^ or tho oourts pur - 

24 suant to sootion 107(a) or 108 (e)^ 

25 "(o) (1) Any oporator notifi e d of an ordor und e r thi s 



20-040 O - 78 - 31 



476 



44 

1 s ection or any repre s entativ e of min e rs notifiod of tho issu - 

2 anoo, modification, or termination of ouch an order may apply 

3 to tho Commiooion within ton dayo of ouch notification for 

4 annulment or revision of such orderi Tho Commission shall 

5 forthwith afford an opportunity for a hearing (in accordance 

6 with seetion 551 of title 5, Unitod States Codo, but without 

7 rogard to subsootion (a) (3) of such section) and thoroaftor 

8 ohall ioouo an ord e r, basod upon findings of faot, vaoating, 

9 affirming) modifying, or t e rminating th e S e cr e tary's orderi 

10 Tho Commiooion may not grant temporary reli e f from tho 

11 ioouanoo of any ordor undor ouboootion (a) of thio oootiom 

12 "(2) Tho Commiooion ohall tako whatovor aotion is 

13 nooossary to oxpodito proooodings undor this subsootioni 

15 "Seo. 109. (a) (1) Tho Soorotary may inotituto a civil 

16 aotion for roliof, including a permanent or temporary injuno - 

17 tion, rootraining ordor, or any other appropriat e ordor in tho 

18 diotriot oourt of tho United Statos for tho district in whioh a 

19 mino i s located or in which the operator of such min e hag 

20 hio prinoipal offico, wh e nevor such operator or his agont 

21 (a) violates or fails or r e fus e s to comply with any ord e r or 

22 dooision issuod und e r this Act, or (b) interferes with, hin 

23 doro, or delays th e Secretary or hi s authorized representativ e , 

24 or tho Secretary of Health, Education, and Wolfaro or hio 

25 authorized repres e ntative, in carrying out tho provisions of 



477 



45 

1 tho Aot, or (o) rofusos to admit such representatives to the 

2 mino, or (d) rofusoo to pormit tho inopootion of tho mino, or 

3 tho invootigation of an aooidont or occupational diooaoo oo 

4 curring in, or connoctod with, such min e , or (o) rofusos to 

5 furnioh any information or roport roquootod by tho Soorotary 

6 or tho Soorotary of Hoalth, Education, and Wolfaro in fur 

7 thoranoo of tho provioiono of thio Aot, or (f) rofuooo to por 

8 mit accoss to, and copying of, such records as the S e cr e tary 

9 or tho Soorotary of H e alth, Education, and W e lfare doter 

10 min e s necessary in carrying out th e provisions of this Act. 

11 "(2) Tho Soorotary may institute a oivil action for 

12 roliof including pormanont or temporary injunction, ro - 

13 straining ordor, or any other appropriato ordor in tho 

14 district court of th e Unit e d Stat e s for tho district in which 
1& tho mino io locat e d or in which tho oporator of ouch mino 

16 hao hio prinoipal offioo whon e v e r tho Soorotary boliovoo that 

17 tho oporator of a mino is ongaged in a patt e rn of violation 

18 of tho hoalth and saf e ty standards of this Act, which in the 

19 judgm e nt of tho S e cretary constitutes a continuing hazard 

20 to tho health or safety of minors. 

21 " (b) In any aotion brought undor subsection (a) of this 

22 oootion, tho oourt shall hav e jurisdiction to provido such roliof 

23 as may bo appropriat e. In the ca s e of an action under sub - 

24 oootion (a) (2) , th e court s hall in it s order r e quir e such as - 

25 suranco or affirmative steps as it deems n e c e ssary to aoouro 



478 



46 

1 iteolf that tho protection afforded to min e rs und e r this Act 

2 ohall bo providod by tho oporator. Tomporary restraining 

3 ordoro ohall bo ioouod in aooordanoo with rulo 65 of tho Fod 

4 oral RuIob of Civil Proooduro, as am e nd e d, exoopt that tho 

5 timo limit in f . uoh order * ., whon issuod without notioo, ohall 

6 bo seven days from th e d a t e of ontry. Exc e pt as otherwi se 

7 providod horoin, any rolief grant e d by tho court to e nforoo 

8 an ordor undor olauso ( a ) of thi s section s h a ll continue in 

9 offoot until tho oompl e tion or fin a l t e rmin a tion of all prooood 

10 ingo for roviow of such ord e r und e r thi s title, unl e s s , prior 

11 thoroto, tho diotriot oourt granting suoh r e lief sots it aoido or 

12 modifios it. In any a ction in s titut e d und e r thi s se ction to on 

13 foroo an ord e r or d e ci s ion i ss u e d by th e Commi ss ion or the 

14 Soorotary aft e r a public he a ring in a ccord a nc e with oootion 

15 55 4 of title 5 of tho Unitod Statoo Codo, tho findings of the 

16 Commission or tho Secretary, as th e caso may bo, if oup 

17 port e d by substantial evidence on th e record consider od as 

18 a whol e , shall bo conclusive. 

19 * 'posting of notice s , order s , and decision s 

20 "Sec. 110 (a) At e ach min e subj e ct to this Aot thoro 

21 shall bo maintain e d an offico with a conspicuous sign dosig 

22 nating it as th e offic e of th e min e , and a bull e tin board at 

23 ouoh offioo or at somo conspicuous placo n e ar an ontranoo 

24 of tho min e , in such manner that notices, ord e rs, oitationo, 

25 and dooisions r e quir e d b}r law or r e gulation to bo pootod on 



479 



47 

1 tho mine bulletin board may b e postod th e reon, be easily 

2 visible to all porsone desiring to road thorn, and bo protootod 

3 against damag e by w e ather and against unauthorized ro 

4 moval. A oopy of any notioo, ordor, oitation, or dooision ro - 

5 quired by this Act to b e giv e n to an operator s hall b e d »- 

6 livorod to tho offioo of tho affootod mino, and a oopy shall 

7 b e imm e diately po s t e d on tho bulletin bo a rd of suoh m iae 

8 by tho operator or his agent for not l e ss than thirty day s? 

9 "(b) The Secretary shall (i) oauoo a oopy of any notioo, 

10 ordor, oitation, or doeioion roquirod by this Act to bo givon 

11 to an oporator to bo mailed immodiatoly to a ropro s ontative 

12 of tho minoro in tho affootod mine, and (ii) caus e a oopy 

13 thoroof to bo mailed to tho publio offioial or agonoy of tho 

14 State ohargod with administering Stato laws, if any, r e lating - 

15 to health or safety in suoh minoi Suoh notice, ord e r, oitation, 

16 or dooision shall bo available for publio inspootion. 

17 " (o) In order to insur e prompt complianc e with any 

18 notice, ordor, oitation, or d e oision issuod und e r this Aot, the 

19 authorizod r e pr e seotativ e of the Secretary may d e liv e r suoh 

20 notice, ordor, oitation, or d e cision to an ag e nt of tho oporator, 

21 and euch ag e nt s hall immediately take appropriat e m e asur e s 

22 to ineuro compliance with s uch notice, order, citation, or 

23 dooieiom 

24 " (d) Eaoh oporator of a mino cubjoot to this Aot shall 

25 file with tho S e cretary the name and addross of such mino 



480 



48 

1 and tho name and address of tho person who oontrolo or 

2 operates the mine. Any revisions in such nainos or addresse s 

3 shall be promptly filed with the Secretary. Eaoh operator 

4 of a mino oubjoot to tbia Act shall designate a responsible 

5 s ffioial at such min e as tbo prinoipal officer in obargo of 
G health and oafoty at ouoh mino, and ouoh offioial shall receive 

7 a oopy of any notice, order, citation, or dooioion issued 

8 undor this Act affecting such mine. In any caoe, where the 

9 mino m subjoet to tho control of any porson not directly 

10 i nvolved in tho daily operations of tbo mino, thero shall 

11 bo filed with the Secretary 1 the name and address of such 

12 p e rson and th e namo and addross of a prinoipal offioial of 

13 s uch p e rson who s hall hav e overall responsibi l ity for th e 

14 oonduot of an eff e otivo health and saf e ty program at any 

15 mino subject to th e control of s uch p e r s on, and such official 

16 shall roooivo a oopy of any notice, order, citation, or do 
■*■' uifiion issued aff e cting any such mino i Tho moro designation 

18 of a hoaltb and saf e ty offioial under this subsootion shall not 

19 bo oonotruod as making suoh offioial subjoot to any ponalty 

20 under this Act . 

21 "penaltie s 

22 "SbOi.111 . (a) The operator of a mine in which occurs 

23 a violation of a provision of this Act or a safety or health 

24 standard pre s cribed by or un d er this Act, or any rule, ord e r , 

25 or rogulation promulgated pursuant to this Act, shall be 



481 



49 

1 assossod a civil p e nalty of not moro than $10,000 for oaoh 

2 such violation 

3 "(b) Any operator who fails to correct a violation for 

4 which a citation hao boon ioouod undor oootion 105 (a) within 

5 the period permitted for its oorrootion (which poriod ohall 

6 not end until tho entry of a final order by the Commiooion, 

7 in th e cas e of any review proceedings under s ection 106 

8 initiated by tho op orator whoroin the Commission orders, 

9 after an expedited hearing, tho suspension of the abatement 

10 requirements of tho citation after determining that the opcr 

11 ator will oufTor irroparablo loss or damage from the applioa 

12 tion of those requirements, or until tho entry of an order of 

13 tho court, in tho case of any roviow procoodingo undor soc - 

14 tion 107 initiated by tho oporator whoroin tho court orders 

15 tho suspension of tho abat e m e nt r e quirements of the oita - 

16 tion) , may bo assessed a civil penalty of not more than 

17 $1,000 for oach day during which such failure or violation 

18 oontinuosi 

19 " (o) Whonovor a oorporato oporator violates a provision 

20 e f this Act or a saf e t}^ or health standard pr e scribed by or 

21 under thio Act, or any rulo, ordor, or regulation promulgated 

22 pursuant to this Act, any director, officer, or ag e nt of such 

23 e erp oration who knowingly authorized, ordered, or carried 

24 out such violation shall b e s ubject to the s am e civil penalties, 



482 



50 

1 finoo, and imprioonmont that may bo impoood upon a person 

2 under ouboootion (a), (b), (o), (f),or (g) of thio ocotion. 

3 "(d) x\ny oporator who willfully, or with grooo nogli 

4 gonoo, violatoo ft provioion of thio Aot or a oafoty or hoaltb 

5 s tandard proeoribod by or undor thio Aot, or any rulo, ordor, 

6 or rogulation promulgatod purouant to thio Act, and thoroby 

7 oauooo a minor or minoro to bo subjootod to imminent danger, 

8 shall bo oubjoot to a oivU penalty oloouro ordor by the Com 

9 mission, which ordor ohall: (i) ordor tho mino oloood for a 

10 opooifiod poriod not to oxoood thirty working dayo, (ii) pro 

11 vido that tho mino may not bo rooponod aftor suoh poriod 

12 oxcopt upon a oubooquont ordor and finding by tho Commio - 

13 s ion that no unabat e d safety or hoalth violations oxist at ouoh 

14 mino ( e xoopt violations for whioh tho poriod for abatement 

15 has not expir e d) , and (in) provide that during tho p e riod of 

16 olosuro tho oporator shall pay tho miners at their regular 

17 hourly rotoo for tho hours thoy would havo worked had the 

18 mino not boon ordorod olosod, oxoopt any minor or minors 

19 found by tho Commission to havo willfully or with gross 

20 nogligonoo oontributod to tho violation or violations w^hioh 

21 gavo rioo to tho oloouro ordor. 

22 " (o) Any oporator who willfully violatoo a provision of 

23 this Aot or a saf e ty or h e alth standard pr e scrib e d by or undor 

24 &io Aot, or any rul e , ord e r, or rogulation promulgatod pur - 

25 : suant to this Act, shall, upon conviction, bo punish e d by a 



4S3 



51 

1 fine of not more than $25,000 or by imprisonment for not 

2 more than one year, or by both : except that if the conviction 

3 is for q violation committed after a firgt conviction of ouoh 

4 person for any violation of this Act piinishmont shall bo a 

5 fine of not more than $50,000 or imprisonment for not more 

6 than five year?, or both. 

7 , - 1 -<4-) — Any person who gives advance notice of any 

8 inspection to be conducted under this Act shall, upon oonvie - 

9 tion. be punk - hod by a fine of not more than $1,000 or by 

10 imprisonment for not more than six months, or by both. 

11 "(g) Whoever knowingly makes any fake statement, 

12 representation, or certification in any application, record, 

13 report, plan, or other document filed or requir e d to bo main - 

14 tainod pursuant to this Act shall, upon conviction, bo 

15 punished by a fine of not more than $10,000, or by imprison 

16 ment for not more than six months, or by both. 

17 "(h) Any operator who violates , any of the posting re 

18 quiromonts, af prescribed under the provisions ' of this- Act, 

19 shall be assessed a civil penalty of up to $10,000 for each 

20 violation. 

21 " ' i) Any miner who willfully violates the mandatory 

22 saf e ty standards r e lating to smoking or th e carrying of 

23 smoking materials, matches, or lighters shall be subject to a 

24 civil penalty assess e d by the Commission of not more than 

25 335Q for each occurrence of men violation. 



484 



52 

1 " (j) Wboovor knowingly diotributoo, oolln, offoro for 

2 sale, introduces, or delivers in commerce any cqiiipmcnt for 

3 use in a mine, including, but not limited to, compon e nt s 

4 a nd aooosoorios of ouch equipment, wbioh is represented as 

5 oomplying with tho provisions of tbio Aot, or with any spec 

6 i fioation or regulation of tho Soorotary applioablo to cuoh 

7 oquipmont, and which does' not oo oomply, shall, upon 

8 conviction, bo punished by a fino of not moro than $25,000 

9 or by imprisonment for not moro than one year, or by both . 

10 "(h) Tho Commission shall havo authority to access 

11 all civil ponalti e s and to issuo all civil penalty olosuro orders 

12 provided in this Act. In aosossing civil monetary pcnaltioo, 

13 tho Commission shall givo duo consideration to tho gravity 

14 of tho violation, the good faith of tho p e rson charged, the 
history of previous violations, and the appropriat e ness of tho 

penalty with rospoot to tho size of tho busin e ss of any mino 

17 

oporator being charged: Provided, That, in proposing civil 

penalties under this Aot, tho Soorotary may rely upon a sum - 

19 mary roviow of tho information available to him and 3hall 

Hot bo roquirod to make findings of fact oonoorning tho above 

faotors* 

" (1) Civil penalti e s owed under this Act shall bo paid 

OQ 

to the Score tary for deposit into tho Treasury of the United 
States and shall accrue to tho United States. 



485 



53 

1 " (m) This section shall not bo Applicable with roopoot 

2 to title IV of this Aot. 



4 "Sec. 112. If q mine or area of a mine b closed by 

5 an order issued under section 101, section 105, or oeotion 

6 108 of this title, all miners working during the shift wh ea 

7 such order was issued who are idled by such ordor shall be 

8 e ntitled, regardless of the result of any review of such ordor , 

9 to full comp e nsation by th e operator at their regular rates of 

10 pay for the p e riod they are idled, but for not more than the 

11 balance of ouch shift. If ouch order b not terminated prior 

12 to the next working shift, all miners on that shift who arc 

13 idled by such order shall bo entitled to full compensation by 
™ the operator a t th e ir r e gular rat e s of pay for the period they 
^ are idled, but for not more than four hours of ouch shift. If -a 
16 min e or area of a min e is clos e d by an ord e r i s sued under 
n section 105 or s e ction 108 of this titl e for a failure of the 

18 operator to comply with any h e alth or gafoty standard, all 

19 minors who a re idl e d du e to such ordor shall bo fully com 

20 ponsatod after all int e rest e d parties are given an opportuni ty 

21 for a public hearing, which ghall be e xpedited in such oases, 

22 and after guoh order is final by tho operator for lost time at 

23 their regular ratog of pay for such time ag th e minors ore 
2 ^ idled by guoh closing, or for on e week, whichever is tho 



486 



54 

1 lessor. Whonovor an operator violat e s or fail s or r e fu ses to 

2 comply with any ordor isBuod undor sootion 101, Bootion 

3 105, or ocotion 10 8 of this Aot, all minora omployod at the 

4 affected mino who would havo boon withdrawn from, or 

5 prevented from ontoring, ouoh time or aroa thoroof ao a 

6 result of such order shall be entitled to full oompenoation by 

7 the operator at thoir rogular ratoo of pay, in addition to pay 

8 roooivod for work porformod after uuoh ordor wao ioouod, 

9 for tho poriod boginning whoii suoh ordor wao ioouod and 

10 onding whon ouoh order in oompliod with, vaoatod, or tor 

11 minatod. Tho Commiooion ohall havo authority to order com 

12 ponsation duo undor this section upon tho filing of a oom - 

13 plaint by a minor or hio roprooontativo and after opportunity 

14 for hearing oubjoot to ocotion 551 of titlo 5, Unitod Statos 

15 Geder 

16 "admini s trative provi s ion s 

17 "Seo. — 443; — {&) — Tho Soorotary io authorized and 

18 dirootod to adminiotor tho provioiono of thio Aot through a 

19 Mino Saf e ty and H e alth Administration ootabliBhod undor 

20 s e ction 402 of the Federal Min e Safety and Health Amond 

21 monte Aot of 1977. Th e S e cretary, acting through tho Assist - 

22 ant Soorotary for Mino Saf e ty and Health, shall havo author - 

23 ity to appoint, subject to th e civil sorvioe laws, ouoh officers 

24 and omployees a s he may deem nece ss ar}^ for the ad^mnistF ar 

25 tion of this Act, and to pr e scrib e pow e rs, dutios, and rooponoi 



487 



55 

1 bilitioo of all offiooro and omployooa ongagod In the admin is- 

o tration of this Act. 

3 " (b) Exoopt ao provided in section 518 (a) of titlo 2 8 , 

4 United Stat03 Code, relating to litigation boforo the Supreme 

5 Court, the Solicitor of Labor may appear for and roprooont 
q tho Soerotary in any civil litigation brought und e r this Act* 
rj "the federal mine safety and health : 

g BEVIEW COMMIS S ION 

9 "Seo. 111. (a) The Federal Mine Safety and Hoalth 

10 Review CommiaGion io horoby ootabliohod. The Commiooi ^H 

H s hall consist of five m e mbers, appoint e d by th e Pr es id e nt b}^ 

12 and with the advioo and consont of the Sonato, from among 

13 poroono who by roaoon of training, education, or oxporionoc 

14 are qualified to oarry out tho functions of the Commission 

15 undor this Aot. Tho President shall designate one of tho 

16 members of the Commiooion to aorvo as Chairman. 

17 "(b) (1) Tho torms of tho memb e rs of tho Commiooion 
13 ghall bo oix years, oxeopt that — 

19 " (A) m e mbors of tho Commission, first taking office 

20 after tho dato of enactment of th e Mino Safoty and 
2i Hoalth Amendm e nts Act of 1977, shall sorvo, ao dooig - 

22 natod by the President at the time of appointment, one 

23 for a torm of two year s , two for a term of four yoaro, 

24 and two for a torm of six yoars; and 

25 " (B) a vacancy cau s ed by the death, resignation, or 



4.NS 



66 

1 r e moval of any memb e r prior to tho oxpiration of th e 

2 term for which ho wag appointed shall bo filled only for 

3 tho romaindor of i . uch unoxpirod torni. 

4 Any member of the Commission may be removed by the 

5 President for inefficiency, ncgloot of duy, or malfoaoanoo in 

7 "(2) Tho Chairman shall bo responsible on b e half of 

8 tho Commission for tho administrative operations of the 

9 Commisoioni Tho Commission shall appoint suoh omployoon 

10 ao it dooms nooossary to assist in tho porformanoo of the 

11 Commission's functions and to fix th e ir oomponsation in 

12 aooordanoo with tho provisions of ohaptor 51 and subchapter 

13 III of chapt e r 53 of titl e 5, Unit e d Stat e s Code, relating to 

14 classification and g e neral pay r a t es , Upon tho offootivo date 

15 of tho Fodoral Mino Safety and Health Amendments Act of 

16 1977, th e administrativ e l a w judg e s assigned to tho Arling 

17 ton, Virginia, Facility of th e Offic e of H e arings and Appeals, 

18 United Stotos Department of tho Interior, shall bo auto - 

19 matically transf e rred in grad e and position to tho Fodoral 

20 Mine Safoty and Health Koviow Commission. Notwithstand - 

21 ing tho provisions of section 559 of title 5 of tho Unitod 

22 Statoo Codo, tho incumb e nt Chief Adniinistrativo Law Judgo 

23 of the Offioo of Hoarings and App e als of tho Dopartmont of 

24 tho Interior assign e d to th e Arlington, Virginia, facility 

25 shall have the option, on tho offootivo dato of tho Fodoral 



489 



57 

1 Mino Safety and Health Amondmonts Aot of 1977, of trone - 

2 forcing to the Commission as an Administrative Law Judge, 

3 in tho came grado and position as the other Administrati s 

4 Law Judges. The Administrative Law Judgos (oxoopt those 

5 prodding over Indian Probato Matters) — assigned to the 

6 Western facilities of tho Qffioc of Hearings and Appeals o f 

7 the Department of tho Interior shall romain with that Dc - 
S partmont at their presont grade and position or thoy shall 
9 have tho right to tranefor on an oquivalont basis to that ox - 

10 tondod in this paragraph to the Arlington, Virginia Admin 

11 istrativo Law Judges in aicordanco with proooduros ostab - 

12 liohod by tho Civil Service Cornmiseion. Tho Commission 

13 s hall appoint such additional Oiministrativc law judges as 

14 it dooms necessary to carry out tho functions of tho Com - 

15 mission . Assignment, removal, and compen s ation of admin is- 

16 trative law judgC3 shall be in accordance with sections 3105, 

17 33 44 , 5302, and 7521 of title 5, United State3 Code. 

18 "(o) The Commission is authorized to delegate to any 

19 group of throe or moro momboro any or all of the powers of 

20 tho Board, oxcopt that two mombors shall constituto a quo 

21 rum of any group designated pursuant to this paragraph. 

22 " (d) (1) An administrativo law judge appointod by th e 

23 Commission to hoar matters under this Act shall hoar, and 

24 make a determination upon, any procooding instituted boforo 

25 tho Commission and any motion in connoction thorowith, as - 






490 



58 

2 signod to such administrative) law judgo by tho chief adminio 

2 trativo law judg e of tho Commission or by th e Commission, 

3 and ohall mako a decision which constitute ! * his final diopooi 

4 tion of tho proooodings. The decision of tho administrative law 

5 judge of tho Commission shall b e come th e final d e cision of the 
g Commission thirty days after its issuance unless witliin ouch 
7 period tho Commission has diroctod that audi d e cision shall 
g bo reviewed by tho Commission in accordance with para 
9 graph (2) of this subsootiom An administrative law judge 

10 ahall not bo assigned to prepare a rcooinniondod decision 

11 under this Aot . 

12 " (2) Tho Commission shall proscribe rulos of procedure 

13 for its roviow r of tho dooisions of administrative law judges in 

14 oaooo undor this Aot and which shall moot the following 

15 standardo for roviow (tlio provisions of sootion 557(b) of 

16 titlo 5) Unitod Statos Codo, with rogard to tho roviow au 

17 thority of tho Commission aro hereby oxprossly suporoodod 

18 to tho oxtont that they aro inconsist e nt w^ith tho provisions 

19 of paragraphs (A), (B), and (C) of this ouboootion) ; 

20 " (A) Petitions fob digcketioitaby bevif . w. 

21 (i) Any party may filo and sorvo a potition for dis 

22 orotionary roviow^ by th e Commission of a docision of 

23 an adminis trativo law judgo within thirty days aftor tho 

24 iaouanoo of such docicion. Roviow^ by tho Commission 



491 



59 

1 shall not bo a mattor of right but of tho sound dioorotion 

2 of tho Commission. 

3 " (ii) Potitions for disorotionary roviow shall bo filod 

4 only upon ono or moro of tho following grounds: 

5 " (I) A finding or conclusion of material faot io 

6 not supported by substantial ovidonco . 

7 " (II) A nooossary logal conclusion is orronoouo . 

8 " (III) Tho dooioion ig contrary to law or to tho 

9 duly promulgated ruloo or decisions of tho Com 

10 mission. 

11 " (IV) A substantial quostion of law, policy, or 

12 diBorotion is involvocL 

13 "-f^") — A projudioial error of procedure was 
1* oommittod . 

■*•* " (iii) Each issuo ohall bo separately numborod and 

16 plainly and oonoisoly stated, and shall bo supported by 
d e tailod citations to th e record whon assignm e nts of 
orror aro basod on tho rocord, and by statutes, regula 

19 tions, or principal authorities roliod upon. Exoopt for 

20 good oauso shown, no assignment of error by any party 

21 ohall roly on any quostion of faot or law upon which 

99 

the administrative law judgo had not boon afforded an 
opportunity to pass* Eoviow by tho Commission shall 
bo grantod only by affirmative vote of two of tho Com 



24 



20-040 O - 78 - 32 



492 



60 

1 misoionoro prosont and votingi If granted, roviow shall 

2 be limited to the question* raised by the petition . 

3 " (B) Review by commission at its own initi 

4 xVTim — At any timo within thirty days aft e r tho issu - 

5 anoo of a decision of an administrativ e law judgo» the 

6 Commission may in ito discretion (by affirmative voto of 

7 two of tho Commissioners present and voting) order th e 

8 eaoo boforo it for roviow but only upon the ground that 

9 tho douioion may bo contrary to law or Commission pol 

10 ioy, or that a novel qucntion of policy has been pre s ented . 

11 Tho Commission shall state in such order the spooifio 

12 ia'juc of law, Commiooion policy or novel question of 

13 policy involved. If a party's petition for discretionary 

14 review hag been granted, tho Commission shall not raise 

15 or consider additional issues in ouoh roviow proooodingo 

16 oxoopt in oomplianco with this paragraph . 

17 " (C) Scope of review. — For tho purpose of re 

1 8 view by tho Commission undor paragraph (A) or (B) 

19 of this subsoction, the r e cord shall includ e (i) all mat 

20 tors constituting tho record upon which tho decision of 

21 the administrative law judgo was based, (ii) tho nil 

22 ing3 upon proposed findings and conclusions, (iii) the 

23 decision of the administrative law judge, (iv) tho pcti 

24 tion or potitions for discretionary roviow, rospon3C3 

25 thereto, and the Commis s ion's order for roviow, and 



493 



61 

1 (v) briofo filod on roviow. No othor material oholl bo 

2 oonoidorod by the Commiooion upon roviow. The ad - 

3 miniotrativo law judgo'o findings and conclusions of faot , 

4 as distinguished from polioy dotorminationa, shall not 

5 bo sot asido by tbo Commiooion unloos ouoh findings or 

6 conclusions of faot aro unoupportod by oubotantial cvi 
T d e nco of rooordt Tho Commiooion oithor may romand 

8 tho case to th e administrative law judge for further 

9 proceedings as it may direct or it> may affirm, sot aside , 
1° or modify tho d e cision or order of tho administrative) law 
H judgo in conformity with the record. If tho Commiooion 

12 determines that furth e r ovidonoo is noooooary on an 

13 issue of fact it shall r e mand th e case for furth e r pro 

14 ooodings b e fore th e administrative law judgo. 

1 5 " (0) In connection with hearings b e foro tho Commio 
1° oion, or its administrativ e law judgos, undor thio Act, the 

Commiooion and its administrative law judgoo may compel 
tho attendance and testimony of witnossos and tho production 

I 9 of booko, papers, or documents or objoot o , and to ordor testi - 
mony to bo tak e n by d e position at an}r stago of tho proceedings 

2i before them. Any person may b e compollod to appear and do 
pooo and produc e lik e documentary or physioal ovidonoo, in 
the same manner ao witnooooo may be compollod to appear 

and produoo ovid e nce befor e tho Commission and its admini*3 

25 

trativc law judgos. Witnesses s hall be paid tho Game fees and 



4<>4 



62 

1 mileage that aro paid witnesses in tho oourto of tho United 

2 States and at depositions ordered by cueh oourto. In case of a 

3 oontumaoy, failure, or rofiiF . nl of any peroon to obey a mil) 

4 pena or order of the Commission or nn administrative law 

5 judge, respectively, to appear, to testify, or to produce doeu 

6 montnry or physical evidence, any district oourt of the 

7 United Staton or the United States courts of any territory 

8 or possession, within the jurisdiction of which cueh porson is 

9 found, or resides, or tranoaoto business, ohall, upon tho appli - 

10 cation of tho Commiooion, or tho adminiotrativo law judge , 

11 respectively, have jurisdiction to issuo to suoh porson an or - 

12 dor requiring suoh person to appear, to testify, or to produce 

13 ovidenoo as ordered by the Commificion or tho administrative 

14 law judge, respectively, and any failure to oboy ouch order 

15 of the oourt may bo punished by said oourt as a contempt 

16 thoroof. 

17 " AUTHORIZATION OF APPROPRIATIONS 

18 "Seo. 115. Thoro aro authorized to be appropriated, 

19 out of any monoys in tho Treasury not otherwise appro 

20 priated, suoh sums as may bo nooossary to carry out tho 

21 provisions of this titlo. ". 

22 MANDATORY SAFETY TRAINING 

23 "Seo. 116. — (a) Each oporator shall have a 3afcty 

24 training program which shall bo approvod by tho Secretary . 

25 The Secretary shall promulgate regulations wdth rcopcot to 



495 



63 

1 ouoh safety training programs no moro than ono hundred 

2 and eighty days aftor the effective dato of the Federal Mine 

3 Safety and Health x\mcndmcnt3 Act of 1977. Each training 

4 program approvod by tho Soorotory ohall provide no looo than 

5 4ha$ — 

6 " ( 1 ) now minors ohall roooivo no looo than forty 

7 hours of training if thoy are to work underground. 

8 Such training shall inoludo uoo of tho eolf rosouo doviec 

9 and use of rospiratory devices, hazard r e cognition, 

10 oooapowayo, walk around training, omorgonoy prooo 

11 duroo, baoio ventilation, basic roof oontrol, olootrioal 

12 hazards, first aid, and tho h e alth and saf e ty aspects of 

13 tho task to whioh ho will b e as s ign o d ; 

14 " (2) now minora ohall rcooivo no looo than twenty - 

15 four houro of training if thoy aro to work on tho our 

16 face. Suoh training shall inoludo use of tho oolf rcaoucr 

17 device and uso of rospiratory doviooo, hazard rcoog - 

18 nition, omorgonoy proooduroo, olootrioal hazardo, fir3t aid , 

19 walk around training and tho hoalth and oafoty aopcot3 

20 of tho task to whioh ho will bo assignod ; 

21 " (3) all minors shall roooivo no looo than eight 

22 hours of r e froshor training no loss froquontly than once 

23 oaoh twolvo months, exc e pt that minors already cm 

24 ployed on tho offootivo date of tho Federal Mine Safety 

25 and Health Amondmonte Aot of 1977 ohall receive this 



496 

64 

1 refr es h e r training no mor e than nin e ty d a ys aft e r th e 

?. dat e of approval of the training plan r e quir e d by this 

3 s e ction ; 

4 "(4) any minor who is reassigned to a now tank 

5 nhall roooivo training in aoeordanoo with a twining 

6 plan approvod by tho Soor e tary und e r tins subsection 

7 in tho oafoty and health aspooto spooifio to that task prior 

8 to porforming that task t 

9 " (b) — Any oafoty training provid e d und e r subsection 

10 (a) of thio aootion ohall bo provided during normal work 

11 ing hoursi Minors shall bo paid at th e ir normal rato of 

12 oomponsation whilo th e y tako such training, and now miners 

13 shall bo paid at thoir starting wago rato whon thoy take 

14 tho n e w min e r training. If such training shall be given at 

15 a location other than th e normal place of work, minors 

16 ohall also bo oomponsat e d for tho additional ooste thoy may 

17 incur in attending such training s e ssion s , 

18 " (o) Upon completion of oaoh training program, oaoh 

19 operator shall c e rthfy, on a form approved by th e Secr e tary, 

20 that tho minor has rec e ived tho specifi e d training in oaoh 

21 oubjoot ar e a of the approved s afety training plan. A oortifi - 

22 oato for each miner s hall be maintained by tho oporator, and 

23 ohall bo availabl e for in s pection at the mine sito, and a oopy 

24 thereof shall be given to each miner at the completion of euch 

25 training. When a miner leaves the operator's omploy, ho shall 



497 



65 

1 bo ontitlod to a copy of bis safety training cortificatos. Falso 

2 certification by nn operator that training was given shall be 

3 punishablo under section 111 (a) and (h) of this Act; and 

4 each safety training certificate shall indicate on its faoe, in 

5 bold lettcra, printed in a conspicuous manner the fact that 

6 such false c e rtification is so punishablo* • 

7 "(d) Within one hundred and eighty days a-ftor tho 

8 effective dato of tho Fodoral Mine Safety and Hoalth Amond 

9 monte xVot of 1977, tho Soorotary shall publish regulations 

10 which shall provido that mino roscuo teams oomprised of 

11 Federal mino inspectors shall bo maintained at oaoh district 

12 subdistriot, and, whoro practicable, fiold offioo of tho Mino 

13 Safety and Hoalth Administration. '\ 

14 AMENDMENT S WITH RESPECT TO INTERIM MANDATORY 

15 HEALTH S TANDARDS 

16 Seo. 202. (a) (1) Section 201 (a) of tho Fodoral Coal 
n Mino Hoalth and Safoty Act of 1969 is amondod by striking 
!8 out "coal mkios" and inserting in lieu thereof "minos, as 

19 applicable". 

20 (2) Soction 301 (b) of such Act is amondod by striking 

21 out "ooal mino" and inserting in liou thoroof "mino". 

22 (b) Sootion 205 of such Act is amonded b}^ striking 

23 out "ooal mining" and insorting in li e u thoroof "mining". 

24 (o) Scotion 206 of such Act ic amondod by striking out 



498 



66 

1 "coal mino" oaoh timo it appears thoroin and insorting in 

2 liou thoroof "mino"i 

3 (d) (1) Section 303 (o) of the Fodoral Coal Mino 

4 Health and Safety Act of 10 6 ia amended to read aa 

5 follows ; 

6 "(a) Roforonooo to concentrations of rospirablo dust in 

7 this titlo nioan ' j the avorago conoontration of roopirablo dust 

8 nioasurod with a dovioo approvod by tho SooroUtry and tho 

9 Secretary of Hoalth, Education and Wolfaro."i 

10 (2) Section 8 1 8 of the Federal Coal Mino Hoalth and 

11 Safoty Act of 1069 iu amondod by striking suboootion (k) 

12 thoroofi 

13 AMEXDMENTS WITH BEfel'ECT TO IXTEHIM MANDATOBY 

14 SAFETY B TAKDAJBDtJ FOB UNDEliliKOUND COAL MIKE S 

15 Seo. 203. Title III of tho Federal Coal Mino Health 

16 and Safoty Act of 1969 is amondod by striking sootion 301 

17 (o) and (d) thoroof. 

18 TITLE III MISCELLANEOUS PROVISIONS 

19 TnANDFED MATTERS 

20 SeCi 301. — fa-) — Excopt with rospoot to tho funotiono 

21 assigned to th e Secretary of the Interior pursuant to section 

22 501 of the Federal Coal Mino Hoalth and Safoty Act of 

23 10 6 0, the funotiono of tho Soorotary of tho Interior under 

24 tho Fodoral Coal Min e Health and Safety Act of 1969, an 

25 amended, and th e Fed e ral Metallic and Xonmotallio Mino 



499 



67 

1 Saf e ty Act of 1966 aro ironoforrod to tho Soorotary of Labor, 

2 oxoopt thooo whioh aro oxproooly tranoforrod to tho Commiu 

3 sion by this Aoti 

4 (b) (1) Tho mandatory standards rolating tominoo, 

5 iosuod by tho Soorotary of tho Interior undor tho Fodoral 

6 Mctailio and Nonmotallio Mino Safety Aot of 1966 and 

7 standardo and regulations undor tho Fodoral Coal Mino 

8 Health and Safety Act of 1969 which aro in offoct on tho 

9 dato of onactmont of this Act shall romain in offoot ao 

10 standards applicable to m e tallic and nonm e tallic minos and 

11 to ooal minos rospoctivoly under tho F e doral Mino Safoty and 

12 Health Aot of 1977 until suoh timo as tho Soorotary ohall 

13 issue now or rovisod standards. 

li (2) Within sixty days after the effectiv e dat e of this 

15 Aot, tho Soorotary shall e s tabli s h an advi s ory committoo 

16 undor s e ction 103 of the Federal Mine Safety and H e alth 

17 Aot of 1977 which shall, within one hundred and oighty 

18 days after the date of the e s tablishment of s uch advisory 

19 oommittoo^ roviow the advi s ory health and s afety standardo 

20 ioouod by the Secretary of the Interior und e r the Fodoral 

21 Mctailio and Nonmetallic M i ne Safety Act of 1966 and roo 

22 ommond to the Secretary which o f those standard s (or any 

23 modification of s uch standards w h ich does not subctantially 

24 dimini s h the healt h and safety of miner s ) s hould be pro - 

25 ntulgatod a s health and sa fety s tandard s under this section. 



500 



68 

1 Che S ecretary shall publish, within s ixty days after any 

2 recommendations of the advigory committee under this para - 

3 graph, oaoh of tho standards so rooommondod for adoption 

4 with or without modification as a health and safoty standard 

5 under thio section by publication of ouch standard in tho 

6 Federal Register, and afford interested per s ons a period of 

7 twenty five days after publication to submit written data or 

8 comment. Within thirty days after the close of the comment 

9 period specified in the preceding sentence, the S ecretary shall 

10 promulgate by publication in tho Federal Register a standard 

11 baaed upon tho advisory committee recommended with or 

12 without modification, and the data and comments received 

13 thereon, unless tho Soerotary determines that such a. standard 

14 will not promoto tho health and safety of minors and pub 

15 lishc3 an explanation of that determination in the Federal 

16 Regi s ter. 

17 (3) All interpretations, regulations, and instructions of 

18 the Secretary of the Interior or the Director of the Bureau 

19 « of Mines, in effect on the date of enactment of this Act and 

20 . not inconsistent with any provision of this Act or any 

21 am e ndment made by this Act, shall be published in the Fed - 

22 - cral Register and shall continue in effect until modified or 

23 "s uperseded in accordance with the provisions of this Act. 

24 (c) (1) All unexpended balances of appropriations, per 

25 sonncl, property, records, obligations, and commitments 



501 



69 

1 which arc used primarily with respect to any function trans 

2 f erred under the provisions of 3ub3cction (a) of thio oootion 

3 to the Secretary 3hall be transferred to the Department of 

4 Labor or the Commission, as appropriate. The transfer of 

5 personnel pursuant to this paragraph shall be without rcduo 

6 " tion in classification or compensation for o ne ye ar-af ter su c h 
.7 transfer, except that the Secretary of Labor shall have full 

8 authority to assign poroonnol during ouoh ono yoar poriod in 

9 order to efficiently carry out functions transferred to him 

10 under this Act. 

11 (2) All orders, decisions, determinations, rule s , rcgula - 

12 - tions, permits, oontraote, certificates, lioonsos, and privileges 

13 (A) whioh have boon issued, made, granted, or allowed 

14 Ho become effective in tho oxoroioo of functions whioh arc 

15 ' transferred under this sootion by any department or agency, 

16 any functions of whioh arc transferred by this section, and 

17 (B) which arc in offoot at tho time this sootion takes effect, 

18 " ghall continue in effect according to their tcrm3 until modi - 

19 - fied, terminated, ouporoodod, cot aside, or ropcaled by the 

20 Secretary of Labor, tho Fodoral Mino Safety and Health 

21 Review Commission, by any court of competent jurisdiction, 

22 - or by operation of law. 

23 (3) The provisions of this section shall not affect any 

24 - proceedings ponding at tho timo thio sootion takc3 effect - 

25 before any department or agonoy, functions of which are 



502 

70 

1 transferred by this section; except thnt such proceedings, to 

2 tho extent thnt they relate to functions no transferred, shall 

3 - be continued before the S ecretary of Labor or the Federal 

4 Mine Safety and Health Review Commis s ion. Orders shall 

5 be issued in such proceedings, appeals shall be taken there ■ 

6 from, and payments shall be made pursuant to such orders, 

7 - a s if thi s section had not been enacted ; and orders waned in 

8 any such proceedings shall continue in effect until modified, 

9 terminated, superseded, or repealed by the S ecretary of 

10 Labor, the Federal Mine S afety and Health Review Com - 

11 mission, by a court of competent jurisdiction, or by operation 

12 of law. 

13 -f 4) Th e provisions of this section shall not affect suits 

14 commenced prior to the date this s ection takes effect and in 

15 all such suits proceedings 3hall he had, appeals taken, and 

1 6 judgments rendered, in the same manner and effect ag if 

17 this section had not been enacted; except that if before the 

18 date on which this section takes effect, any department or 

19 agency (or officer thereof in his official capacity) is a party 

20 to a suit involving functions transferred to the Secretary, 

21 then such suit shall be continued by the Secretary of Labor. 

22 , y cause of action, and no suit, action, or other proceeding, 

23 by or against any department or ngonoy (or officer thereof 

24 m his official capacity) functions of which are transferred 

25 by this section, ohall abate by roaoon of the enactment of this 



503 



71 

1 ocotion. Causes of actions, suits, actions, or other proceeding 

2 *nay be a83crtcd by or against the United States or the Sccrc - 

3 tary as may be appropriate and, in any litigation pending 

4 wh e n this section takes effect, the court may at any time, on 

5 its own motion or that of any party, enter an order which 

6 will give effect to the provisions of this paragraph. 

7 (d) For purposes of this section, (1) the term "func - 

8 tion" includes power and duty, and (2) the transfer of a 

9 function, under any provision of law, of an agency or the 

10 head of a department shall also bo a transfer of all functions 

11 under such law which aro oxorcieod by any officer or offi - 

12 ccr of such agency or department. 

13 MINE SAFETY AND IIEALTII ADMINISTRATION 

14 Sec. 302. (a) There is established in the Department 

15 of Labor, a Mine Safety and Health Administration to 

16 be headed by an Aooiotant Secretary of Labor for Mine 

17 -S afety and Hoalth appointed by the President, by and with 

18 the advice and consent of the Senate. The Secretary i3 au 

19 - thorized and dirootod, oxoopt as specifically provided other - 

20 wise, to carry out hio funotiono under tho Federal Mine Safety 

21 and Health Amendments Act of 1077 through the Mine 

22 flafety and Health Administration. 

23 (b) Section 5315 of title 5, United States Code, is 

24 amended by adding at tho end thereof the following 

25 paragraph ; 



504 



72 

1 "(109) Assistant Secretary of Labor for Mino 

2 Safety and Health.". 

3 (c) (1) S ection 51 4 5 of title 5, United S tates Code, ig 

4 amended by adding nt the end thereof the following new 

5 paragraph : 

6 - "(6 4 ) Chairman, Federal Mine S afety and Health 

7 Review Commission.". 

8 (9) S e cti o n 5315 o f titl e 5, Uni t ed S t ates C o d e , is 

9 . amended by adding at tho ond thereof tho following now 

10 paragraph ; 

11 ■ " (100) Member s , Federal Mine Safe t y and Heal t h 

12 R e view Commis s ion.". 

13 (d) The principal office of the Commission s hall be in 

14 the District of Columbia. Whenever the Commission deems 

15 i t - hat the convenience of the public or of the partie s may be 

16 promoted, or delay or expense may be minimised, it may 

17 hold hearings or conduct other proocodingo at any other 
J.O place. 

19 AMENDMENTQ WITII BEOPBOT TO MINE QAFBTY AND 

20 HEALTH ADMINISTRATION 

21 .Sec. 303. (a) (1) Section 501 (a) of the Federal Coal 

22 Mine Health and Safety Act of 1060 13 amended by striking 

23 - out the word "coal" wherever it appears therein, and by 

24 s triking out "The Secretary and" and inserting in li e u thereof 

25 "The Secretary of the Interior and". 






505 



73 

1 (2) Section 501 (a) of the Federal Coal Mine Health 

2 and Safety Aot of 1060 ia further amended by inserting 

3 immodiatoly after paragraph "(10)" thereof, the following 

4 now paragraph: 

5 " (11) to, upon the written request by any operator 

6 or authorized representative of minora, specifying with 

7 reasonable particularity the grounds upon whioh 3ueh 

8 request is made determine whether any substance nor 

9 mally found in a mine has potentially toxic effects in tho 

10 concentrations normally found in the mine or whether 

11 any physical agents or cquipmont found or used in a 

12 giinc has potentially hazardous effects, and shall g ubmit 

13 ouch determinations to both the operators and miner s 

14 08 soon aa possible ;" and 

15 by ronumboring the current paragraph " (11) " as " (12) ". 
1(5 - (3) Scotion 501 (b) of such Act is amended by striking 1 
17 out tho word "oool" oaoh timo it appears therein and by 
lg adding after tho word "Wolfaro" the following i "through the 
IQ Notional Institute for Occupational Safoty and Health cstob - 
20 liohod undor tho Occupational Safety and Health Act of 
2i 1070"; and by striking out tho period at the end thereof 

22 and inserting "of tho Interior in coordination with the 

23 Secretory". 

24 ( 4 ) Section 501 (d) of such Aot is amended by striking 

25 oat the word "cool". 



506 



74 

1 ^5) Sootion 501 of such Act is further amended by add - 

2 ing at tho ond thoroof tho following new subsection : 

3 "(h) The Secretary ghall oompilo aoourato etatistics on 

4 work injurioo and illnoaoco occurring in the minc3 subject to 

5 - this Act.". 

6 < (b) Sootion 502 of ouch Aot io amended by gtriking 

7 out tho word "coal" onch time it appoarn therein. 

8 (o) (1) S ection 508 (n) of such Aot is amended by 

9 otriking out tho word "coal" ench timo it nppearo therein. 
10 • {%) Section 503 (b) of ouch Aot io amended by otriking 
1J out tho word "ooal" oaoh timo it appoaro therein. 

12 (d) (1) S ection 503(f) of such Act i s amended by 

13 atriking out tho word "ooal". 

14 (2) Section 503 (g) of such Act i s amended by striking 

15 out tho word "ooal". 

16 (c) (1) Section 505 of suoh Aot is amended by otriking 

17 out "tho mining of ooal" and inoorting in liou thoroof "in 

18 mining". 

19 { 2) Sootion 505 of ouoh Aot is further amended by 

20 eh anging tho poriod at tho ond of tho oooond sentence thereof 

21 to a colon, and adding tho following language; "Provided 

22 howeve r , That, to tho maximum extent feasible, in the selec - 

23 tion of poroono for appointmont ao mino inspootorg, no person 

24 shall bo so 3clcotcd unloss he ha3 the basic qualification of at 

25 least five years practical mining experienc e and in assignin g- 



507 



75 

1 mino inspectors to tho incpootion and investigation of individ 

2 ual minos, duo consideration chall bo givon to tho ostont poG 

3 sibl e to their provious oxporionoo in tho partioular typo of 

4 mining operation whoro such inspections aro to b e mado» " 

5 (f) Section 506 (b) of such Act is amondod by striking 

6 out tho word "coal" e ach time it appears therein . 

7 (g) (1) Soction 511(a) of such Act is amendod by 

8 striking out the word "coal" . 

9 (2) Sootion 511 (b) of cuoh Act is amend e d by striking 

10 out tho word "coal ". 

11 (h) Section 502 of such Act is am e ndod by adding -fche- 

12 following new s ubsection (c) : 

13 " (c) (1) The National Mine Health a nd Safety Acad - 
11 e my s hall b e maint a ined as a n a gency of th e D e partment 

15 of the Interior. The Academy shall be responsible for the 

16 training of mine safety and health inspectors under section 

17 505 of this Act , and in training of technical support p e r - 

18 sonnol of tho Mine S a fety a nd He a lth Administration e stab - 

19 lish e d under s ection 302 of the Feder a l Mine S a f e ty and 

20 Hoalth Amendm e nts Act of 1977; a nd for any other train- 

21 ing program s for mine inspectors, mining pers o nnel, or oth er 

22 porsons as th e Secretaries o f Labor an d I n terior s hall desig - 

23 nato T n performing +*"° ^Tinrimn J th* \<*nA*™y g h Q n h*™ 

24 the authority to enter in to cooperative educational and train- 

25 ing agr ee ment s with educational institutio n s, State gov e rn - 



20-040 O - 78 



508 



76 

1 mente , l a bor org a niz a tion s , a nd min e op e r a tors and r e latod 

2 industrioc. Such training shall bo conduct e d by th e Aoadomy 

3 in a ccord a nco with currioulum nood s and aesignmont of 

4 instruction a l p e rsonn e l ostoblishod by tho uoor . 

5 " (2) In p e rforming its funotion pursu a nt to this soo - 

6 tion, tho National Mino Hoalth and Safety Aoadomy nhall 

7 u s o th e f a ciliti es and p e r s onn e l of th e D e p a rtm e nt of tho In - 

8 torior , a nd such oth e r p e rsonnel as s h a ll b e mutually agrood 

9 upon by th e S e cret a ri e s of L a bor a nd Int e rior. Tho Soorotary 

10 of th e Int e rior, upon r e qu es t by th e Ac a demy , s h a ll appoint 

11 or as sign to th e Ac a d e my s uch offic e rs a nd e mploy e es as tho 

12 Dirootor of tho Ac a d e my de e ms n e c essa ry for tho perform 

13 ano e of tho duti es a nd function s of th e Ac a d e my . 

14 " ( 8 ) Tho Soorotary of the Int e rior s hall conduct hio 

15 safety re s earch respo ns ibil i ties under section 501 of thio Aot 

16 in coordination with the Secret a ry o f Labor, a n d th e Secr e- 

17 tarioo of Labor and th e Interi o r ar e authorized to e nt e r into 

18 . contractual or other a gree m ents f o r the performanc e of such 

19 safety rel a ted research .". 

20 (i) Seotion 7(b) (5) of t h e Sm all Bu s ine ss Act is 

21 qmonded by striking out th e word "0001" . 

22 PAYINGS PROVISION 

23 Sec. SOI Nothing majsma^d ua **"« Af) * ™* ™y ^^^ 

24 m0 nt made by ft" q JBBt Alii hp rnnstrnpd to rehire tho 

25 number of inspectors engaged in enforcement of tho Fod - 



509 



77 

1 oral Coal Mino Hoalth and Safoty x\ot of 1969 and Fod 

2 oral Motallio and Nonmotallio Mino Safoty Aot of 1966 as in 

3 eff e ct prior to tho offootivo dato of thio Aot or to roduoo 

4 th e numb e r of inspectors ongagod in tho onforoomont of 

5 tho Oooupational Safoty and Hoalth Aot of 1970 . 

6 BUDOET FBOVI S ION 

7 SeOi 305a In tho pr e paration of tho Budg e t mossago 

8 roquirod und e r sootion 201 of tho Budg e t and Aooounting 

9 Aot, 1921 (31 TJ.S.C. 11), tho President shall sot forth 

10 as separate appropriation accounts amount s r e quir e d for 

11 appropriation for min e health and saf e ty pursuant to tho 

12 Fod e ral Mino Health and Saf e ty Act of 1977 and for ooou - 

13 pational saf e ty and health pur s uant to th e Occupational 

14 Safoty and Hoalth x\ot of 1970 . 

15 REPEALEB 

16 Sep. 306. Tho F e d e ral M e tal and Nonmotallio Mino 

17 Safoty Aot of 1966 io ropoalod . 

18 EFFECTIVE DATE 

19 Sec i 307. This Act and th e amendments mado by thio 

20 Aot ohall tako off e ct on th e first day of July 1978 exc e pt 

21 that th e Secretary of Labor i s authorized to establish 

22 puoh rul e s and regulation s as may be necessary for tho e ffi - 

23 oiont tran s for of functions providod undor this Aot . 



510 



78 

1 That this Act may be cited as the "Federal Mine Safety and 

2 Health Amendments Act of 1977". 

3 TITLE I— AMENDMENTS TO THE GENERAL 

4 PROVISIONS OF THE FEDERAL COAL MINE 

5 HEALTH AND SAFETY ACT OF 1969 

6 SHORT TITLE 

7 Sec. 101. The first section of the Federal Coal Mine 

8 Health and Safety Act of 1969 is amended to read as fol- 

9 lows: "That this Act may be cited as the 'Federal Mine 

10 Safety and Health Act of 1977' ". 

11 DEFINITIONS AND APPLICABILITY 

12 Sec. 102. (a)(1) Section 2 of the Federal Coal Mine 

13 Health and Safety Act of 1969 is amended by striking out 

14 "coal" wherever it appears. 

15 (2) Section 2(g) (1) of such Act is amended by striking 

16 out "the Interior" and inserting in lieu thereof "Labor" . 

17 (b)(1) Section 3(a) of such Act is amended by strik- 

18 ing out "the Interior" and inserting in lieu thereof "Labor" . 

19 (2) Section 3(d) of such Act is amended by deleting 

20 the semicolon at the end thereof, and inserting in lieu thereof 

21 "or any independent contractor performing services or con- 

22 struction at such mine;" 

23 (3) Section 3(h) of such Act is amended to read as 

24 follows: 

25 "(h) 'Mine' means (1) an area of land from which 



511 



79 

1 minerals are extracted in nonliquid form or. if in liquid 

2 form, are extracted with workers underground, (2) private 

3 ways and roads appurtenant to such area, and (3) lands, 

4 excavations, underground passageways, shafts, slopes, tun- 

5 nets, and workings, structures, facilities, equipment, machines, 

6 tools, or other property including impoundments, retention 

7 dams, and tailings ponds, on the surface or underground, used 

8 in, or to be used in, or resulting from, the work of extracting 

9 such minerals from their natural deposits in nonliquid form, 

10 or if in liquid form, with workers underground, or used in, 

11 or to be used in, the milling of such minerals, or the work of 

12 preparing coal, and includes custom coal preparation facili- 

13 ties. In making a determination of what constitutes mineral 

14 milling for purposes of this Act the Secretary shall give due 

15 consideration to the convenience of administration resulting 

16 from the delegation to one Assistant Secretary of all authority 

17 with respect to the health and safety of miners employed at 

18 one physical establishment." 

19 (4) Sections 3(d), (e), (g), and (j) of such Act are 

20 each amended by striking out the word "coaX' wherever it 

21 appears. 

22 (5) Section 3 of such Act is amended by striking out the 

23 word "and" at the end of paragraph (I), by striking out the 

24 period at the end of paragraph (m) and inserting in lieu 



512 



80 

1 thereof a semicolon, and by adding at the end thereof the 

2 following new paragraphs: 

3 "(n) 'Administration means the Mining Enforcement 

4 and Safety Administration in the Department of Labor; 

5 and 

6 "(o) 'Commission means the Federal Mine Safety and 

7 Health Review Commission." 

8 (c) Section 4 of such Act is amended by striking out 

9 the word "coal" . 

10 (d)(1) Section 5(c) of such Act is amended by strik- 

11 ing out "Labor" and inserting in lieu thereof "the Interior". 

12 (2) Section 5(f) of such Act is amended by striking 

13 out the word "coal" wherever it appears, and by striking 

14 out "section 106" and substituting "section 107". 

15 TITLE II— MINE SAFETY AND HEALTH 
l fi STANDARDS AMENDMENTS 

17 AMENDMENT TO TITLE I 

18 Sec. 201. Title I of the Federal Coal Mine Health and 

19 Safety Act of 1969 is amended to read as follows: 

20 "duties 

21 "Sec. 101. (a) Each mine operator (1) shall furnish 

22 to each miner employment and a place of employment which 
2 ^ are free from recognized hazards that are causing or are 
24 likely to cause death or harm to such miner; and (2) shall 



513 



81 

1 comply with the safety and health standards and all rules, 

2 regulations, and orders promulgated under this Act; and 

3 "(b) Each miner subject to the provisions of this Act 

4 shall comply with the safety and health standards and all 

5 rules, regulations, and orders promulgated under this Act 

6 which are applicable to his own actions and conduct. 

7 "mandatory safety and health standards 

8 "Sec. 102. (a) The Secretary may by rule promulgate, 

9 modify, or revoke uny mandatory safety or health standard 

10 for the health and safety of miners, including standards for 

11 mine rescue and firefighting operations, and for the pre- 

12 vention of accidents, injuries, or health hazards in mines 

13 which are subject to this Act in accordance with section 553 

14 of title 5, United States Code (without regard to any refer- 

15 ence in such section to sections 556 and 557 of such title), 
1^ and the following provisions: 

17 "(1) Whenever the Secretary, upon the basis of infor- 

18 mation submitted to him in writing by an interested person, 

19 a representative of any organization of employers or em- 

20 ployees, a nationally recognized standards-producing organi- 

21 zation, the Secretary of Health, Education, and Welfare, the 

22 National Institute for Occupational Safety and Health, or a 
^ State or political subdivision, or on the basis of information 
^ developed by the Secretary or otherwise available to him, 



514 



82 

1 determines that a rule should be promulgated in order to 

2 serve the objectives of this Act, the Secretary may request 

3 the recommendations of an advisory committee appointed 

4 under section 103 of this Act. The Secretary shall provide 

5 such an advisory committee with any proposals of his own 

6 or of the Secretary of Health, Education, and Welfare, to- 

7 gether with all pertinent factual information developed by 

8 the Secretary or the Secretary of Health, Education, and 

9 Welfare, or otherwise available, including the results of re- 

10 search, demonstrations, and experiments. An advisory com- 

11 mittee shall submit to the Secretary its recommendations 

12 regarding the rule to be promulgated within ninety days from 

13 the date of its appointment or within such longer or shorter 

14 period as may be prescribed by the Secretary, but in no event 

15 for a period which is longer than one hundred and eighty 

16 days. When the Secretary receives a recommendation ac- 

17 companied by appropriate criteria from the National Insti- 

18 tute for Occupational Safety and Health that a rule be 

19 promulgated, modified, or revoked, the Secretary must, within 

20 sixty days after receipt thereof, refer such recommendation 

21 to an advisory committee pursuant to this paragraph, or 

22 publish such a proposed rule pursuant to paragraph (2) 

23 of this subsection, or publish in the Federal Register his 
2^ determination not to do so, and his reasons therefor. 

25 «(2) The Secretary shall publish a proposed rule pro- 



515 



83 

1 mulgating, modifying, or revoking a safety or health stand- 

2 ard in the Federal Register. If the Secretary determines that 

3 a rule should be proposed and in connection therewith has 

4 appointed an advisory committee as provided by paragraph 

5 (1) of this subsection, the Secretary shall publish a proposed 

6 rule or the reasons for his determination not to publish such 

7 rule, within sixty days following the submission of the advi- 

8 sory committee's recommendation, or the expiration of the 

9 period of time prescribed by the Secretary in such submission. 

10 In either event, the Secretary shall afford interested persons 

11 a period of thirty days after any such publication to submit 

12 written data or comments on the proposed rule. Such com- 

13 ment period may be extended by the Secretary upon a finding 

14 of good cause, which the Secretary shall publish in the Federal 

15 Register. 

16 "(3) On or before the last day of the period provided 

17 for the submission of written data or comments under para- 

18 graph (2) , any interested person may file with the Secretary 

19 written objections to the proposed mandatory health or safety 

20 standard, stating the grounds therefor and requesting a public 

21 hearing on such objections. Within sixty days after the last 

22 day for filing such objections, the Secretary shall publish in 

23 the Federal Register a notice specifying the mandatory safety 

24 or health standard to which objections have been filed and a 

25 hearing requested, and specifying a time and place for such 



516 



84 

1 hearing. Any hearing under this subsection for the purpose 

2 of hearing relevant information shall commence within sixty 

3 days after the date of publication of the notice of hearing. 

4 Hearings required by this subsection shall be conducted by 

5 the Secretary, who may prescribe rules and make ratings 

6 concerning procedures in such hearings to avoid unnecessary 

7 costs or delay. 

8 The Secretary may require by subpoena the attendance of 

9 witnesses and the production of evidence in connection with 

10 any proceeding initiated under this section. If a person re- 

11 fuses to obey a subpoena under this subsection, a United States 

12 district court within the jurisdiction of which a proceeding 

13 under this subsection is conducted may, upon petition by the 

14 Secretary, issue an order requiring compliance with such 

15 subpoena. A verbatim transcript shall be taken of any such 

16 hearing and shall be available to the public. 

1' "(4) (A) Within ninety days after certification of the 

1° record of such hearing, the Secretary shall promulgate. 

19 modify, or revoke such mandatory standards, and publish 

20 his reasons therefor as he deems appropriate. 

21 (B) In the case of a proposed mandatory health or 

22 safety standard to which objections requesting a public hear- 

23 ing have not been filed, the Secretary, within ninety days after 
the period for filing such objections has expired, shall 



517 



85 

1 promulgate, modify, or revoke such mandatory standards, 

2 and publish his reasons therefor as he deems appropriate. 

3 (C) In the event the Secretary determines that a pro- 

4 posed mandatory health or safety standard should not be 

5 promulgated he shall, within the times specified in para- 

6 graphs (A) and (B) of this subsection, publish his reasons 

7 for his determination. 

8 (D) Any mandatory health or safety standard may 

9 contain a provision delaying its effective date for such a 

10 reasonable period as the Secretary determines may be neces- 

11 sary to insure effective compliance. 

12 "(5) (A) The Secretary, in promulgating mandatory 

13 standards dealing with toxic materials or harmful physical 

14 agents under this subsection, shall set standards which most 

15 adequately assure on the basis of the best available evidence 

16 that no miner will suffer material impairment of health or 
l^ functional capacity even if such miner has regular exposure 

18 to the hazards dealt with by such standard for the period of 

19 his working life. Development of mandatory standards under 

20 this subsection shall be based upon research, demonstrations, 

21 experiments, and such other information as may be appro- 

22 priate. In addition to the attainment of the highest degree of 

23 health and safety protection for the miner, other considerations 

24 shall be the latest available scientific data in the field, the 



518 



86 

1 feasibility of the standards, and experience gained under this 

2 and other health and safety laws. Whenever practicable, the 

3 mandatory standard promulgated shall be expressed in terms 

4 of objective criteria and of the performance desired. 

5 (B) The Secretary of Health, Education, and Welfare 

6 as soon as possible after the date of enactment of the Federal 

7 Mine Safety and Health Amendments Act of 1977 but in 

8 no event later than eighteen months after such date and 

9 on a continuing basis thereafter, shall, for each toxic material 

10 or harmful physical agent which is used or found in a mine, 

11 determine whether such material or agent is potentially toxic 

12 at the concentrations in which it is used or found in a mine. 

13 The Secretary of Health, Education, and Welfare shall sub- 

14 mit such determinations with respect to such toxic substances 

15 or harmful physical agents to the Secretary. Thereafter, the 

16 Secretary of Health, Education, and Welfare shall submit 

17 to the Secretary all pertinent criteria regarding any such 

18 substances determined to be toxic or any such harmful agents 

19 as such criteria are developed. Within sixty days after re- 

20 ceiving any criteria in accordance with the preceding sen- 

21 tence relating to a toxic material or harmful physical agent 

22 which is not adequately covered by a mandatory health or 

23 safety standard promulgated under this section, the Sec- 

24 retary shall either appoint an advisory committee to make 

25 recommendations with respect to a mandatory health and 



519 



87 

1 safety standard covering such material or agent in accord- 

2 ance with paragraph (1) of this subsection or publish a pro- 

3 posed rule promulgating such a mandatory health and safety 

4 standard in accordance with paragraph (2) of this sub- 

5 section or shall publish his determination not to do so. 

6 "(6) Any mandatory standard promulgated under this 

7 subsection shall prescribe the use of labels or other appro- 

8 priate forms of warning as are necessary to insure that 

9 miners are apprised of all hazards to which they are ex- 

10 posed, relevant symptoms and appropriate emergency treat- 

11 ment, and proper conditions and precautions of safe use or 

12 exposure. Where appropriate, such mandatory standard 

13 shall also prescribe suitable protective equipment and con- 

14 trol or technological procedures to be used in connection 

15 with such hazards and shall provide for monitoring or 

16 measuring miner exposure at stich locations and intervals, 

17 and in such manner so as to assure the maximum protec- 

18 Hon of miners. In addition, where appropriate, any such 

19 mandatory standard shall prescribe the type and frequency 

20 of medical examinations or other tests which shall be made 

21 available, by the operator or at his cost, to miners exposed 

22 to such hazards in order to most effectively determine 

23 whether the health of such employees is adversely affected 

24 by such exposure. Where appropriate, the mandatory stand- 

25 ard shall provide that where a determination is made that 



520 



88 

1 a miner may suffer material impairment of health or func- 

2 tional capacity by reason of exposure to the hazard covered 

3 by the mandatory standard, that miner shall be removed 

4 from such exposure and reassigned. Any miner transferred 

5 as a result of such exposure shall continue to receive com- 

6 pensation for such work at no less than the regular rate 

7 of pay for miners in the classification such miner held 

8 immediately prior to his transfer. In the event such medical 

9 examinations are in the nature of research, as determined 

10 by the Secretary of Health, Education, and Welfare, such 

11 examinations may be furnished at the expense of the Secre- 

12 tary of Health, Education, and Welfare. The results of 

13 such examinations or tests shall be furnished only to the 

14 Secretary or the Secretary of Health, Education, and Wel- 

15 fare, and, at the request of the miner, to his designated 

16 physician. 

17 "(7) The Secretary shall, to the extent practicable, 

18 promulgate separate mandatory health and safety standards 

19 applicable to mine construction activity on the surface. 

20 "(8) In promulgating, modifying or revoking manda- 

21 tory standards as authorized in this title, or in publishing 

22 any rule as authorized in this title, the Secretary shall not 

23 reduce the protection afforded miners below that provided by 

24 any safety or health standard previously in effect. 

25 "(b)(1) The Secretary shall provide, without regard 



521 



89 

1 to the requirements of chapter 5, title 5, United States Code, 

2 for an emergency temporary mandatory standard to take im- 

3 mediate effect upon publication in the Federal Register if he 

4 determines (A) that miners are exposed to grave danger 

5 from exposure to substances or agents determined to be toxic 

6 or physically harmful or to other hazards, and (B) that 

7 such emergency standard is necessary to protect miners from 

8 such danger. 

9 "(2) Such mandatory standard shall be effective until 
10 superseded by a mandatory standard promulgated in accord- 
H ance with the procedures prescribed in paragraph (3) of this 

12 subsection. 

1 3 "(3) Upon publication of such standard in the Federal 

14 Register, the Secretary shall commence a proceeding in ac- 

1 5 cor dance with section 102(a) of this Act, and the standard 
as published shall also serve as a proposed rule for the pro- 

17 

ceeding. The Secretary shall promulgate a standard under 
this paragraph no later than nine months after publication of 
I 9 the emergency standard as provided in paragraph (2) of 
this subsection. 

"(c) The Secretary is authorized to grant a variance 
from any mandatory standard or portion thereof whenever 

he determines, or the Secretary of Health, Education, and 

24 

Welfare certifies, that such variance is necessary to permit 

an operator to participate in research approved by him or 



522 



90 

1 the Secretary of Health, Education, and Welfare designed to 

2 demonstrate or validate new and improved techniques to 

3 safeguard the health or safety of workers. No such variance 

4 shall be granted until the Secretary shall find that the grant- 

5 ing of such variance will not adversely affect the health or 

6 safety of the miners, and the Secretary notifies the miners 

7 affected directly and by publication in the Federal Register. 

8 "(d) Upon petition by the operator or representative of 

9 miners, the Secretary may issue an order for a variance 

10 from the application of any mandatory health or safety 

11 standard to a mine if the Secretary determines that an alter- 

12 native method of achieving the result of such standard exists 

13 which will at all times insure at least the same measure of 

14 protection afforded by such standard, or that the application 

15 of such standard would result in a diminution of health or 

16 safety to the miners. Upon receipt of such petition, the Sec- 

17 retary shall give notice thereof to the operator or the repre- 

18 tentative of miners in the affected mine, as appropriate, shall 

19 publish notice thereof in the Federal Register, and shall 

20 cause such investigation to be made as he deems appropriate. 

21 The Secretary shall provide an opportunity for a public 

22 hearing on such petition at the request of the operator, the 

23 representative of miners or other interested party. Any such 

24 hearing shall be of record and shall be subject to section 

25 554 of title 5 of the United States Code. The Secretary shall 



523 



91 

1 issue a decision and order on all such petitions which shall 

2 incorporate his findings of fact with respect thereto and shall 

3 send a copy thereof to the operator or the representative of the 

4 miners, as appropriate. The order so issued shall prescribe the 

5 conditions the operator must maintain, and the practices, 

6 means, methods, operations, and processes which he must 

7 adopt and utilize to the extent they differ from the standard 

8 in question. Such order may be modified or revoked upon 

9 application by an operator, miner, representative of miner 

10 or by the Secretary, in the manner prescribed for its issuance 

11 under this subsection. 

12 "(e) The provisions of subsection (d) shall not apply 

13 with respect to any mandatory standard enacted by title II 

14 of this Act and in effect on the date immediately prior to the 

15 effective date of the Federal Mine Safety and Health Amend- 

16 ments Act of 1977 or to any mandatory standard promul- 

17 gated pursuant to that title prior to such date. 

18 "(f) Any person who may be adversely affected by a 

19 mandatory standard issued under this section may, at any 

20 time prior to the sixtieth day after such standard is promul- 

21 gated, file a petition challenging the validity of such manda- 

22 tory standard with the United States Court of Appeals for the 

23 District of Columbia circuit or the circuit wherein such 

24 person resides or has his principal place of business, for a 

25 judicial review of such standard. A copy of the petition shall 

20-040 O - 78 - 34 



524 



92 

1 be forthwith transmitted by the clerk of the court to the 

2 Secretary. The filing of such petition shall not, unless other- 

3 wise ordered by the court, operate as a stay of the standard. 

4 No objection that has not been urged before the Secretary 

5 shall be considered by the court, unless the failure or 

6 neglect to urge such objection shall be excused because of 

7 extraordinary circumstances. The validity of any mandatory 

8 health or safety standard shall not be 'subject to challenge on 

9 the grounds that any of the time limitations in this section have 

10 been exceeded. The procedures of this subsection shall be the 

11 exclusive means of challenging the validity of a mandatory 

12 standard. 

13 "advisory committees 

14 u Sec. 103. (a) The Secretary may appoint advisory 

15 committees to assist him in his standard setting functions 

16 under section 102(a) of this Act, and to advise him on 

17 other matters relating to safety and health in mines. Each 

18 such advisory committee may include as a member one 

19 or more designees of the Secretary of Health, Education, 

20 and Welfare, the National Bureau of Standards of the 

21 Department of Commerce, and the National Science Foun- 

22 dation, and shall include among its members persons quali- 

23 fied by experience and affiliation to present the viewpoint 

24 of operators of such mines and an equal number of persons 



525 



93 

1 similarly qualified to present the viewpoint of workers in 

2 such mines, as well as one or more representatives of mine 

3 inspection or safety agencies of the States. An advisory 

4 committee may also include such other persons as the Sec- 

5 retary may appoint who are qualified by knowledge and 

6 experience to make a useful contribution to the work of such 

7 committee, including one or more representatives of profes- 

8 sional organizations or technicians or professionals specializ- 

9 ing in safety or health, but the number of persons so 

10 appointed to any such advisory committee shall not exceed 

11 the number appointed to such committee as representatives 

12 of Federal and State agencies. Any meeting of such com- 

13 mittee shall be open to the public and an accurate record 
^ shall be kept and made available to the public. No member 
15 of such committee (other than representatives of operators 
1^ and miners) shall have an economic interest in any proposed 
1' rule. 

18 "(b) Persons appointed to advisory committees from 

19 private life shall be compensated in the same manner as 
2 ^ consultants or experts under section 3109 of title 5, United 

21 States Code. The Secretary shall pay to any State which 

22 is the employer of a member of such committee reimburse- 
2 ^ ment sufficient to cover the actual costs to the State resulting 
2 ^ from such representatives' membership on such committee. 



526 



94 

1 "inspections, investigations, and recordkeeping 

2 "Sec. 104. (a) Authorized representatives of the Secre- 

3 tary or the Secretary of Health, Education, and Welfare 

4 shall make frequent inspections and investigations in mines 

5 each year for the purpose of (1) obtaining, utilizing, and 

6 disseminating information relating to health and safety con- 

7 ditions, the causes of accidents and the causes of diseases and 

8 physical impairments originating in such mines, (2) gather- 

9 ing information with respect to manatory health or safety 
10 standards, (3) determining whether an imminent danger 
H exists, and (4) determining whether or not there is compli- 
12 ance trith the mandatory health or safety standards or with 
1^ any notice, order, or decision issued under this title or other 

14 requirements of this Act. In carrying out the requirements of 

15 this subsection, no advance notice of an inspection shall be 
1" provided to any person, except that in carrying out the re- 
-^ quirements of clauses (1) and (2) of this subsection, the 
l^ Secretary of Health, Education, and Welfare may give ad- 

19 vanced notice of inspections. In carrying out the require- 

20 ments of clauses (3) and (4) of this subsection the Secretary 
^ shall make inspections of each underground mine in its en- 

tirety at least four times a year, and of each surface mine 
in its entirety at least two times a year: Provided, That the 
Secretary shall develop guidelines for additional such inspec- 
tions of mines based on criteria including, but not limited to 



527 



95 

1 the hazards found in mines subject to this Act, and his experi- 

2 ence under this Act and other health and safety laws. For 

3 the purpose of making any inspection or investigation under 

4 this Act, the Secretary or the Secretary of Health, Educa- 

5 tion. and Welfare or any authorized representative of the 

6 Secretary or the Secretary of Health. Education, and Weir 

7 fare shall have a right of entry to, upon, or through any 

8 mine. 

9 "(b) In making his investigations of accidents or other 
10 occurrences relating to health or safety in a mine under this 
H Act. the Secretary may require the attendance and testi- 

12 mony of witnesses and the production of evidence under 

13 oath. Witnesses shall be paid the same fees and mileage that 

14 are paid witnesses in the courts of the United States. In 

15 case of a contumacy, failure, or refusal of any person to 

16 obey such an order, any district court of the United States 
1' or the United States courts of any territory or possession, 

18 within the jurisdiction of which such person is found, resides, 

19 or transacts business, upon the application by the Secre- 

20 tary. shall have jurisdiction to issue such person an order 

21 requiring such person to appear to produce evidence if, as, 

22 and when so ordered, and to give testimony relating to the 

23 matter under investigation or in question, and any failure 

24 to obey such order of the court may be punished by said 

25 court as a contempt thereof. 



528 



96 

1 "(c)(1) Each operator shall make, keep, and preserve, 

2 and make available to the Secretary or the Secretary of 

3 Health, Education, and Welfare, such records regarding his 

4 activities relating to this Act as the Secretary, in cooper a- 

5 tion with the Secretary of Health, Education, and Welfare, 

6 may prescribe by regulation as necessary or appropriate 

7 for the enforcement of this Act or for developing informa- 

8 tion regarding the causes and prevention of occupational 

9 accidents and illnesses in the mines subject to this Act. In 

10 order to carry out the provisions of this paragraph such 

11 regulations may include provisions requiring operators to 

12 conduct periodic inspections. 

13 "(2) The Secretary, in cooperation with the Secretary 

14 of Health, Education, and Welfare, shall prescribe regula- 

15 tions requiring operators to maintain accurate records of and 

16 to make periodic reports on, work-related deaths, injuries, 

17 and illnesses other than minor injuries requiring only first 

18 aid treatment and which do not involve medical treatment, 

19 loss of consciousness, restriction of work or motion, or trans- 

20 fer to another job in the mines subject to this Act. 

21 "(3) The Secretary, in cooperation wth the Secretary 

22 of Health, Education, and Welfare, shall issue regulations 

23 requiring operators to maintain accurate records of employee 

24 exposures to potentially toxic materials or harmful physical 

25 agents which are required to be monitored or measured under 






529 



97 

1 any applicable mandatory health and safety standard pro- 

2 mulgated under this Act. Such regulations shall provide 

3 miners or their representatives with an opportunity to ob- 

4 serve such monitoring or measuring, and to have access to 

5 the records thereof. Such regulations shall also make appro- 

6 priate provision for each miner or former miner to have 

7 access to such records as will indicate his own exposure to 

8 toxic materials or harmful physical agents. Each operator 

9 shall promptly notify any miner who has been or is being 

10 exposed to toxic materials or harmful physical agents in 

11 concentrations or at levels which exceed those prescribed by 

12 an applicable health and safety standard promulgated un- 

13 der section 102, or mandated under title II, and shall in- 

14 form any miner who is being thus exposed of the corrective 

15 action being taken. 

16 "(4) All accidents, including unintentional roof falls 

17 (except in any abandoned panels or in areas which are 

18 inaccessible or unsafe for inspections) , shall be investigated 

19 by the operator or his agent to determine the cause and 

20 the means of preventing a recurrence. Records of such acci- 

21 dents, roof falls, and investigations shall be kept and the 

22 information shall be made available to the Secretary or his 

23 authorized representative and the appropriate State agency. 

24 Such records shall be open for inspection by interested 

25 persons. 



530 



98 

1 "(d) Any information obtained by the Secretary, or by 

2 the Secretary of Health, Education, and Welfare under this 

3 Act shall be obtained in such a manner as to impose a mini- 

4 mum burden upon operators, especially those operating small 

5 businesses, consistent with the underlying purposes of this 

6 Act. Unnecessary duplication of effort in obtaining informa- 

7 Hon shall be reduced to the maximum extent feasible. 

8 '(e) Subject to regulations issued by the Secretary, a 

9 representative of the operator and a representative au- 

10 thorized by his miners shall be given an opportunity to 

11 accompany the Secretary or his authorized representative 

12 during the physical inspection of any mine under sub- 

13 section (a) for the purprose of aiding such inspection and 

14 to participate in pre- or post-inspection conferences held at 

15 the mine. Where there is no authorized miner representative, 

16 the Secretary or his authorized representative shall consult 
1*7 with a reasonable number of miners concerning matters of 

18 health and safety in the mine. Such representative of miners 

19 who is also an employee of the operator shall suffer no loss 

20 of pay as a result of his participation in the inspection made 

21 under this subsection. To the extent that the Secretary or 

22 authorized representative of the Secretary determines that 
28 more than one representative from each party would further 
24 aid the inspection, he can permit each party to have an equal 

23 number of such additional representatives. However, only one 



531 



99 

1 such representative of miners who is an employee of the 

2 operator shall be entitled to suffer no loss of pay as a result 

3 of such participation under the provisions of this subsection. 

4 Compliance with this subsection shall not be a jurisdictional 

5 prerequisite to the enforcement of any provision of this Act. 

6 "(f)(1) Whenever a miner or representative of the 

7 miners has reasonable grounds to believe that a violation of 

8 this Act or of a mandatory health or safety standard exists, 

9 or an imminent danger exists, such miner or representative 

10 shall have a right to obtain an immediate inspection by giv- 

11 ing notice to the Secretary or his authorized representative of 

12 such violation or danger. Any such notice shall be reduced 

13 to writing, signed by the miner or by the representative of 

14 the miners, and a copy shall be provided the operator or his 

15 agent no later than at the time of inspection, except that, the 

16 name of the person giving such notice and the names of in- 

17 dividual miners referred to therein shall not appear in such 

18 copy. Upon receipt of such notification, a special inspection 

19 shall be made as soon as possible to determine if such viola- 

20 thn or danger exists in accordance with the provisions of 

21 this title. If the Secretary determines that a violation or 

22 danger does not exist, he shall notify the miner or representa- 

23 tive of the miners in writing of such determination. 

24 "(2) Prior to or during any inspection of a mine, any 

25 miners or representatives of miners employed in such mine 



532 



100 

1 may notify the Secretary or any representative of the Sec- 

2 retary responsible for conducting the inspection, in writing, 

3 of any violation of this Act or of any imminent danger 

4 which they have reason to believe exists in such mine. The 

5 Secretary shall, by regulation, establish procedures for in- 

6 formal review of any refusal by a representative of the Secre- 

7 tary to issue a citation with respect to any such alleged 

8 violation or order with respect to such danger and shall 

9 furnish the miners or representative of miners requesting 

10 such review a written statement of the reasons for the Sec- 

11 retary 1 s final disposition of the case. 

12 "(g)(1) The Secretary and Secretary of Health, Edu- 

13 cation and Welfare are authorized to compile, analyze, and 

14 publish, either in summary or detailed form, all reports or 

15 information obtained under this section. 

16 "(2) The Secretary and the Secretary of Health, Edu- 
1? cation, and Welfare shall each prescribe such rules and regu- 
1^ lations as they may deem necessary to carry out their respon- 

19 sibilities under this Act, including rules and regulations 

20 dealing with the inspection of mines subject to this Act. 

21 "(h) Whenever the Secretary finds that a mine liber- 

22 ates excessive quantities of methane or other explosive gases 
2 ^ during its operations, or that a methane or other gas ignition 
24 or explosion has occurred in such mine which resulted in 

death or serious injury at any time during the previous five 



533 



101 

1 years, or that there exists in such mine some other especially 

2 hazardous condition, he shall provide a minimum of one 

3 spot inspection by his authorized representative of all or 

4 part of such mine during every five working days at irregu- 

5 lar intervals. For purposes of this subsection, liberation of 

6 excessive quantities of methane or other explosive gases 

7 shall mean liberation of more than one million cubic feet of 

8 methane or other explosive gases during a twenty-four hour 

9 period: Provided, however, That when the Secretary finds 

10 that a mine liberates more than five hundred thousand 

11 cubic feet of methane or other explosive gases during a 

12 twenty-four hour period, he shall provide a minimum of 

13 one spot inspection by his authorized representative of all 
1^ or part of such mine every ten working days at irregular 

1 5 intervals: Provided further, That when the Secretary finds 

16 that a mine liberates more than two hundred thousand cubic 
*' feet of methane or other explosive gases during a twenty- 
1° four hour period, he shall provide a minimum of one spot 

19 inspection by his authorized representative of all or part 

20 of such mine every fifteen working days at irregular 

21 intervals. 

22 "(i) In the event of any accident (whether or not 
resulting in an injury or death) occurring in a mine, the 
operator shall promptly notify the Secretary thereof and 
shall take appropriate measures to prevent the destruction 



534 



102 

1 of any evidence which would assist in investigating the 

2 cause or causes thereof. In the event of any accident oc- 

3 curring in a mine where rescue and recovery work is 

4 necessary, the Secretary or an authorized representative of 

5 the Secretary shall take whatever action he deems appro- 

6 priate to protect the life of any person, and he may, if he 

7 deems it appropriate, supervise and direct the rescue and 

8 recovery activity in such mine. 

9 "(}) In the event of any accident occurring in a mine, 

10 an authorized representative of the Secretary, when present, 

11 may issue such orders as he deems appropriate to insure 

12 the safety of any person in the mine, and the operator of 

13 such mine shall obtain the approval of such representative, 

14 in consultation with appropriate State representatives, when 

15 feasible, of any plan to recover any person in the mine or 

16 to recover the mine or return affected areas of the mine 

17 to normal. 

18 "citations and orders 

19 "Sec. 105. (a) If, upon inspection or investigation, 

20 the Secretary or his authorized representative believes that 

21 an operator of a mine subject to this Act has violated this 

22 Act, or any mandatory health or safety standard, rule, order, 

23 or regulation promulgated pursuant to this Act, he shall, 

24 with reasonable promptness, issue a citation to the operator. 

25 Each citation shall be in writing and shall describe with 



535 



103 

1 particularity the nature of the violation, including a reference 

2 to the provision of the Act, standard, rule, regulation, or 

3 order alleged to have been violated. In addition, the citation 

4 shall fix a reasonable time for the abatement of the violation. 

5 The requirement for the issuance of a citation with reasonable 
g promptness shall not be a jurisdictional prerequisite to the 

7 enforcement of any provision of this Act. 

8 "(b) If upon any followup inspection of a mine, an 

9 authorized representative of the Secretary finds (1) that a 

10 violation described in a citation issued pursuant to subsection 

11 '(&) has not been totally abated within the period of time 

12 as originally fixed therein or as subsequently extended, and 

13 (2) that the period of time for the abatement should not be 

14 further extended, he shall find the extent of the area affected 

15 by the violation and shall promptly issue an order requiring 

16 the operator of such mine or his agent to immediately cause 

17 all persons to be withdrawn from, and to be prohibited from 

18 entering such area until an authorized representative of the 

19 Secretary determines that such violation has been abated, 

20 except the following persons: 

21 "(1) Any person whose presence in such area is 

22 necessary, in the judgment of the operator of the mine, 

23 or an authorized representative of the Secretary, to 

24 eliminate the danger or violation described in the order; 



536 



104 

1 "(2) Any public official whose official duties re- 

2 quire him to enter such area; or 

3 "(3) Any legal or technical consultant, or any rep- 

4 resentative of the miners of the mine, who is a certified 

5 person qualified to make mine examinations, or is accom- 

6 panied by such a person, and whose presence in such 

7 area is necessary, in the judgment of the operator of the 

8 mine or an authorized representative of the Secretary, for 

9 the proper investigation of the conditions described in the 

10 order. 

11 "(c)(1) In the case of a violation of any mandatory 

12 safety or health standard which is of such nature as could 

13 significantly and substantially contribute to the cause and 

14 effect of a mine safety or health hazard, and which is caused 

15 by an unwarranted failure of such operator to comply with 

16 such safety or health standards, the citation shall include 

17 a statement to that effect. If, during the same inspection or 

18 any subsequent inspection of such mine within ninety days 

19 after the issuance of such citation, an authorized representa- 

20 tive of the Secretary finds another violation of any safety 

21 or health standard and finds such violation to be also caused 

22 by an unwarranted failure of such operator to so comply, 

23 he shall forthwith issue an order requiring the operator to 

24 cause all persons in the area affected by such violations, 

25 except those persons referred to in subsection (b) of this 



537 



105 

1 section, to be withdrawn from, and to be prohibited from 

2 entering, such area until an authorized representative of 

3 the Secretary determines that such violation has been abated. 

4 "(2) If a withdrawal order with respect to any area 

5 in a mine has been issued pursuant to paragraph (1) of this 

6 subsection, a withdrawal order shall promptly be issued by 

7 an authorized representative of the Secretary who finds upon 

8 any subsequent inspection the existence in the mine of 

9 other unwarranted violations until such time as an inspec- 

10 tion of such mine discloses no such violations. Following an 

11 inspection of the mine which discloses no unwarranted viola- 

12 tions, the provisions of paragraph (1) of this subsection 

13 shall again be applicable to that mine. 

14 "(d)(1) If an operator has a pattern of violations of 

15 mandatory health or safety standards in the mine which are 

16 of such nature as could have significantly and substantially 

17 contributed to the cause and effect of mine health or safety 
1® hazards, he shall be given written notice that such pattern 

19 exists. If, upon any inspection within ninety days after the 

20 issuance of such notice, an authorized representative of the 

21 Secretary finds any violation of a mandatory health or safety 

22 standard which could significantly and substantially con- 

23 tribute to the cause and effect of a mine safety or health 

24 hazard, the authorized representative shall issue an order 
*** requiring the operator to cause all persons in the area 



538 



106 

1 affected by such violation, except those persons referred to 

2 in subsection (b) of this section, to be withdrawn from, 

3 and to be prohibited from entering, such area until an 

4 authorized representative of the Secretary determines that 

5 such violation has been abated. 

6 "(2) If a withdrawal order with respect to any area in 

7 a mine has been issued pursuant to paragraph (1) of this 

8 subsection, a withdrawal order shall be issued by an author- 

9 ized representative of the Secretary who finds upon any sub- 

10 sequent inspection the existence in such mine of any violation 

11 of a mandatory health or safety standard which could signif- 

12 icantly and substantially contribute to the cause and effect of 

13 a mine health or safety hazard. The withdrawal order shall 

14 remain in effect until an authorized representative of the 
1^ Secretary determines that such violation has been abated. 

16 "(3) If, upon an inspection of the entire mine, an 

1^ authorized representative of the Secretai^y finds no viola- 

18 tions of mandatory health or safety standards that could sig- 

19 nificantly and substantially contribute to the cause and effect 

20 of mine health and safety hazards, the pattern of viola- 

21 tions that resulted in the issuance of a notice under para- 

22 graph (1) of this subsection shall be deemed to be terminated 

23 and paragraphs (1) and (2) of this subsection shall no 
2^ longer apply. However, if as a result of subsequent viola- 
* tions, the operator reestablishes a pattern of violations, para- 



539 



107 

1 graphs (1) and (2) shall again be applicable to such 

2 operator. 

3 "(4) The Secretary shall make such rules as he deems 

4 necessary to establish criteria for determining when a pattern 

5 of violations of mandatory health or safety standards exists. 

6 "(e) During the abatement period for a violation of the 

7 applicable limit on the concentration of respirable dust, the 

8 operator of the mine shall cause samples described in section 

9 202(a) of this Act to be taken of the affected area during 

10 each production shift. 

11 "As soon as possible after an order relating to failure to 

12 abate excessive dust concentrations is issued, the Secre- 

13 tary, upon request of the operator, shall dispatch to the mine 

14 involved a person or team of persons, to the extent such 

15 persons are available, ivho are knowledgeable in the methods 

16 and means of controlling and reducing respirable dust. Such 

17 person or team or persons shall remain at the mine involved 

18 for such time as they shall deem appropriate to assist the 

19 operator in reducing respirable dust concentration. While 

20 at the mine, such persons may require the operator to take 

21 such actions as they deem appropriate to insure the health 

22 of any person in the mine. 

^ "(f)(1) If, upon any inspection or investigation pur- 

24 suant to section 104 of this Act, the Secretary or an author- 

25 ized representative shall find employed at a mine a miner 

20-040 O - 78 - 35 



540 



108 

1 who has not received the requisite safety training under sec- 

2 tion 116 of this Act, the Secretary or an authorized repre- 

3 sentative shall issue an order under this section which 

4 declares such miner to be a hazard to himself and to others, 

5 and requiring that such miner be immediately withdrawn 

6 from the mine, and be prohibited from entering the mine 

7 until an authorized representative of the Secretary deter- 

8 mines that such miner has received the training required by 

9 section 116 of this Act. 

10 "(2) No miner who is ordered withdrawn from a mine 

11 under paragraph (1) of this subsection shall be discharged 

12 or otherwise discriminated against because of such order; 

13 and no miner who is ordered withdrawn from a mine under 

14 paragraph (1) of this subsection shall suffer a loss of com- 

15 pensation during the period necessary for such miner to 

16 receive such training and for an authorized representative 

17 of the Secretary to determine that such miner has received 

18 the requisite training. 

19 "(g) Each citation or order issued under this section, or 

20 a copy or copies thereof, shall be prominently posted in 

21 accordance with section 110 of this Act, and as prescribed 

22 in regulations issued by the Secretary. 

23 "(h) Any order issued under subsection (b), (c), or 

24 (d) shall remain in effect until modified or terminated by the 

25 Secretary or his authorized representative, or modified, 



541 



109 

1 terminated or vacated by the Commission or the courts 

2 pursuant to section 106 or 107. 

3 "procedure for enforcement 

4 "Sec. 106. (a) If, after an inspection or investigation 

5 the Secretary issues a citation or order under section 105, 

6 he shall, within a reasonable time after the termination of 

7 such inspection or investigation, notify the operator by cer- 

8 tified mail of the civil penalty proposed to be assessed under 

9 section 111(a) for the violation cited and that the operator 

10 has fifteen working days within which to notify the Secretary 

11 that he wishes to contest the citation or proposed assessment 

12 of penalty. A copy of such notification shall be sent by mail 

13 to the representative of miners in such mine. If, within fifteen 

14 working days from the receipt of the notification issued by the 

-^ Secretary, the operator fails to notify the Secretary that he 

intends to contest the citation or the proposed penalty or 
17 • 

penalties, and no notice is filed by any miner or representative 

of miners under subsection (d) of this section within such 

1J * time, the citation and the penalty or penalties, as proposed, 

shall be deemed a final order of the Commission and not sub- 

91 

ject to review by any court or agency. Refusal by the operator 

or his agent to accept certified mail containing a notice under 

23 

this subsection shall constitute receipt thereof within the mean- 
ing of this subsection. 



542 



110 

1 "(b)(1) If the Secretary has reason to believe that 

2 an operator has failed to correct a violation for which a 

3 citation has been issued within the period permitted for its 

4 correction the Secretai-y shall notify the operator by certified 

5 mail of such failure and of the penalty proposed to be as- 

6 sessed under section 111 by reason of such failure, and that 

7 the operator has fifteen working days within which to notify 

8 the Secretary that he wishes to contest the Secretary's notifi- 

9 cation or the proposed assessment of penalty. A copy of 

10 such notification shall at the same time be sent by mail to 

11 the representative of the mines. If, within fifteen working 

12 days from the receipt of notification issued by the Secretary, 

13 the operator fails to notify the Secretary that he intends to 

14 contest the notification or proposed penalty, the notification 

15 and assessment, as proposed, shall be deemed a final order 

16 of the Commission and not subject to review by any court 
1" or agency. Refusal by the operator or his agent to accept 
1° certified mail containing a notification issued under ihi* 

19 subsection shall constitute receipt thereof within the meaning 

20 of this subsection. 

21 "(2) The Commission may grant temporary relief from 

22 any order issued under section 105(b) of this Act, under 
** such conditions as it may prescribe, if — 

24 (a) a hearing has been held in which all parties 
were given an opportunity to be heard; 






543 



111 

1 (b) the applicant for such relief shows that there 

2 is substantial likelihood that the findings of the Com- 

3 mission will be favorable to the applicant; 

4 (c) such relief will not adversely affect the health 

5 and safety of miners in the mine; and 

6 The Commission shall provide a procedure for expedited 

7 consideration of such cases. 

8 "(c)(1) Xo person shall discharge or in any manner 

9 discriminate against or cause to be discharged or discrimi- 

10 noted against or otherwise interfere with the exercise of the 

11 statutory rights of any miner, representative of miners or 

12 applicant for employment in any mine subject to this Act 

13 because such miner, representative of mines or applicant for 

14 employment has filed or made a complaint under or related 

15 to this Act, including a complaint notifying the operator or 
1" the operator's agent, or the representative of the miners at 
1' the mine of an alleged danger or safety or health violation 
1 § in the mine, or because such miner, representative of mines 
1^ or applicant for employment is the subject of medical evalu- 

20 ations and potential transfer under a standard published 

21 pursuant to section 102 of this Act or because such miner, 

22 representative of mines or applicant for employment has 
instituted or caused to be instituted any proceeding under or 

** related to this Act or has testified or is about to testify in 
any such proceeding, or because of the exercise by such 



544 



112 

1 miner, representative of miners or applicant for employment 

2 on behalf of himself or others of any statutory right afforded 

3 by this Act. 

4 "(2) Any miner or applicant for employment or rep- 

5 resentative of miners who believes that he has been dis- 

6 charged, interfered with, or otherwise discriminated against 

7 by any person in violation of this subsection may, within 

8 sixty days after such violation occurs, file a complaint with 

9 the Secretary alleging such discrimination. Upon receipt 

10 of such complaint, the Secretary shall cause such investi- 

11 gation to be made as he deems appropriate. Such investi- 

12 gation shall commence within fifteen days of the Secretary's 

13 receipt of the complaint, and if the Secretary finds that such 

14 complaint was not frivolously brought, the Commission, on 

15 an expedited basis upon application of the Secretary shall 

16 order the immediate reinstatement of the miner pending final 
1" order on the complaint. If upon such investigation, the 
IS Secretary determines that the provisions of this subsection 

19 have been inolated, he shall immediately file a complaint 

20 with the Commission, with service upon the alleged violator 

21 and the miner, or applicant for employment, or representa- 

22 tive of miners alleging such discrimination or interference 

23 and proposing an order granting appropriate relief. The 

24 Commission shall afford an opportunity for a hearing (in 
™ accordance with section 554 of title 5, United States Code, 



545 



113 

1 but without regard to subsection (a)(3) of such section) 

2 and thereafter shall issue an order, based upon findings of 

3 fact, affirming, modifying, or vacating the Secretary's pro- 

4 posed order, or directing other appropriate relief; and such 

5 order shall become final thirty days after its issuance. The 

6 Commission shall have authority in such proceedings to 

7 require a person committing a violation of this subsection 

8 to take such affirmative action to abate the violation as the 

9 Commission deems appropriate, including, but not limited 

10 to, the rehiring or reinstatement of the miner to his former 

11 position with back pay and interest. The complaining miner, 

12 applicant, or representative of miners may present addi- 

13 tional evidence on his own behalf during any hearing held 

14 pursuant to this paragraph. 

15 "(3) Within ninety days of the receipt of a complaint 

16 filed under paragraph (2) of this subsection, the Secretary 
1' shall notify the miner, applicant for employment, or repre- 

18 sentative of miners in writing, of his determination whether 

19 a violation has occurred. If the Secretary, upon investigation, 

20 determines that the provisions of this subsection have not been 
^ violated, the complainant shall have the right, within thirty 

99 

days of notice of the Secretary s determination, to file an 

no 

action in his own behalf before the Commission, charging 



24 

of this subsection. The Commission shall afford an oppor- 



discrimination or interference in violation of paragraph (1) 
25 



546 



114 

1 tunity for a hearing (in accordance with section 554 of title 

2 5, United States Code, but without regard to subsection (a) 

3 (3) of such section), and thereafter shall issue an order, 

4 based upon findings of fact, dismissing or sustaining the com- 

5 plainant's charges and, if the charges are sustained, granting 

6 such relief as it deems appropriate, including, but not limited 

7 to, an order requiring the rehiring or reinstatement of the 

8 miner, applicant for employment or representative of miners 

9 to his former position with back pay and interest or such 

10 remedy as may be appropriate. Such order shall become final 

11 thirty days after its issuance. Whenever an order is issued 
" sustaining the miner's charges under thii subsection, a sum 
*■* equal to the aggregate amount of all costs and expenses 
14: (including attorney s fees) as determined by the Commission 

to have been reasonably incurred by the miner, applicant for 
employment or representative of miners for, or in connection 
with, the institution and prosecution of such proceedings shall 
be assessed against the person committing such violation. 
" Proceedings under this section shall be expedited by the Secre- 
tary and the Commission. Any order issued by the Commis- 
sion under this paragraph shall be subject to judicial review 
in accordance with section 107 of this Act. Violations by any 

no 

person of paragraph (1) of this subsection shall be subject 
to the provisions of section 109 and 111(a) of this title." 
"(d) If, within fifteen working days of receipt thereof. 



547 



115 

1 an operator of a mine notifies the Secretary that he intends to 

2 contest the issuance or modification of an order issued under 

3 section 105, or a notification issued under subsection (a) or 

4 (b) of this section, or the reasonableness of the length of 

5 abatement time fixed in a citation or modification thereof 

6 issued under section 105, or any miner or representative of 

7 miners notifies the Secretary of an intention to contest the 

8 issuance, modification, or termination of any order issued 

9 under section 105, or the reasonableness of the length of time 

10 set for abatement by a citation or modification thereof issued 

11 under section 105, the Secretary shall immediately advise 

12 the Commission of such notification, and the Commission 

13 shall afford an opportunity for a hearing (in accordance with 

14 section 554 of title 5, United States Code, but without regard 

15 to subsection (a) (3) of such section) , and thereafter shall 

16 issue an order, based on findings of fact, affirming, modifying, 
1^ or vacating the Secretary's citation, order, or proposed pen- 

18 alty, or directing other appropriate relief; such order shall 

19 become final thirty days after its issuance. The rules of proce- 

20 dure prescribed by the Commission shall provide affected 

21 miners or representatives of affected miners an opportunity 

22 to participate as parties to hearings under this section. The 
*3 Commission shall take whatever action is necessary to expe- 

24 dite proceedings for hearing appeals of orders issued under 

25 section 105. 



548 



116 

1 "judicial review 

2 "Sec. 107. (a) (1) Any person adversely affected or 

3 aggrieved by an order of the Commission issued under this 

4 Act may obtain a review of such order in any United States 

5 court of appeals for the circuit in which the violation is 

6 alleged to have occurred or where the operator has its prin- 

7 cipal office, or in the United States Court of Appeals for the 

8 District of Columbia Circuit, by filing in such court within 

9 thirty days following the issuance of such order a written 

10 petition praying that the order be modified or set aside. A 

11 copy of such petition shall be forthwith transmitted by the 

12 clerk of the court to the Commission and to the other parties, 

13 and thereupon the Commission shall file in the court the 

14 record in the proceeding as provided in section 2112 of title 

15 28, United States Code. Upon such filing, the court shall 

16 have exclusive jurisdiction of the proceeding and of the ques- 
1? tion determined therein, and shall have the power to make 

18 and enter upon the pleadings, testimony, and proceedings 

19 set forth in such record a decree affirming, modifying, or 

20 setting aside, in whole or in part, the order of the Com- 

21 mission and enforcing the same to the extent that such order 

22 is affirmed or modified. No objection that has not been urged 

23 before the Commission shall be considered by the court, 

24 unless the failure or neglect to urge such objection shall be 

25 excused because of extraordinary circumstances. The find- 



549 



117 

1 ings of the Commission with respect to questions of fact, 

2 if supported by substantial evidence on the record consid- 

3 ered as a whole, shall be conclusive. If any party shall 

4 apply to the court for leave to adduce additional evidence 

5 and shall show to the satisfaction of the court that such 

6 additional evidence is material and that there were reason- 

7 able grounds for the failure to adduce such evidence in 

8 the hearing before the Commission, the court may order 

9 such additional evidence to be taken before the Commission 

10 and to be made a part of the record. The Commission may 

11 modify its findings as to the facts, or make new findings, by 

12 reason of additional evidence so taken and filed, and it shall 

13 file such modified or new findings, which findings such re- 

14 sped to question of fact, if supported by substantial evidence 

15 on the record considered as a whole, shall be conclusive. The 

16 Commission may modify or set aside its original order by 

17 reason of such modified or new findings of fact. Upon the 

18 filing of the record with it, after such remand proceedings, 

19 the jurisdiction of the court shall be exclusive and its judg- 

20 ment and decree shall be final, except that the same shall 

21 be subject to review by the Supreme Court of the United 

22 States, as provided in section 1254 of title 28, United States 

23 Code. Petitions filed under this subsection shall be heard 

24 expeditiously. 



550 



118 

1 "(2) The court shall have the power to grant such 

2 temporary relief or restraining order as it deems just and 

3 proper, under such conditions as it may prescribe, if — 

4 "(a) a hearing has been held in which all parties 

5 were given the opportunity to be heard, 

6 "(b) the applicant for such relief or order shows 

7 that there is substantial likelihood that the findings of 

8 the court will be favorable to the applicant, and 

9 "(c) such relief will not adversely affect the health 

10 and safety of miners in the mine. 

11 "(b) The Secretary may also obtain review or enforce- 

12 ment of any final order of the Commission by filing a 

13 petition for such relief in the United States court of appeals 

14 for the circuit in which the alleged violation occurred or 

15 in which the operator has its principal office or in the Court 

16 of Appeals for the District of Columbia Circuit, and the pro- 

17 vision of subsection (a) shall govern such proceedings to 

18 the extent applicable. If no petition for review, as provided 

19 in subsection (a), is filed within thirty days after issuance 

20 of the Commission's order, the Commission's findings of 

21 fact and order shall be conclusive in connection with any 

22 petition for enforcement which is filed by the Secretary 

23 after the expiration of such thirty-day period. In any such 
^ case, as well as in the case of a noncontested citation or 
2 ^ notification by the Secretary which has become a final order 



551 



119 

1 of the Commission under subsection (a) or (b) of section 

2 106, the clerk of the court, unless otherwise ordered by the 

3 court, shall forthwith enter a decree enforcing the order and 

4 shall transmit a copy of such decree to the Secretary and the 

5 operator named in the petition. In any contempt proceeding 

6 brought to enforce a decree of a court of appeals entered 

7 pursuant to this subsection or subsection (a), the court 

8 of appeals may assess the penalties provided in section 

9 111, in addition to invoicing any other available remedies. 

10 "procedures to counteract dangerous conditions 

11 "Sec. 108. (a) If, upon any inspection or investigation 

12 of a mine which is subject to this Act, an authorized repre- 

13 sentative of the Secretary finds that conditions or practices 

14 in such mine are such that an imminent danger exists, such 

15 representative shall determine the extent of the area of such 

16 mine throughout which the danger exists, and issue an order 

17 requiring the operator of such mine to cause all persons, 

18 except those referred to in section 105(b), to be withdrawn 

19 from, and to be prohibited from entering, such area until an 

20 authorized representative of the Secretary determines that 

21 such imminent danger and the conditions or practices which 

22 caused such imminent danger no longer exist. The issuance 

23 of an order under this subsection shall not preclude the issu- 
"■ ance of a citation under section 105 or the proposing of a 
25 penalty under section 111. 



552 



120 

1 "(b)(1) If, upon any inspection or investigation of a 

2 mine, an authorized representative of the Secretary finds 

3 f (A) that potentially dangerous conditions exist therein 

4 which have not yet resulted in an imminent danger, (B) 

5 that such conditions cannot be effectively abated through 

6 the use of existing technology, and (C) that reasonable 

7 assurance cannot be provided that the continuance of mining 

8 operations under such conditions will not result in an im- 

9 minent danger, he shall determine the area throughout which 

10 such conditions exist, and thereupon issue a notice to the 

11 operator of the mine or his agent of such conditions, and shall 

12 file a copy thereof, incorporating his findings therein, with 

13 the Secretary and with the representatives of the miners of 

14 such mine. Upon receipt of such copy, the Secretary shall 

15 cause such further investigation to be made as he deems 

16 appro